Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, there has not been any: (a) Material Adverse Effect; (b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller; (c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any; (d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; (e) entry by Seller into any Contract that would constitute a Material Contract; (f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business; (g) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business; (h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business; (i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason; (j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance; (k) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms; (l) material capital expenditures which would constitute an Assumed Liability; (m) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets; (n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee; (o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement; (p) loan by Seller to, or entry by Seller into any other transaction with, any Employees; (q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; (r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course of Business; (s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or (t) any Contract entered into by Seller to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, except as set forth in Section 3.08 of the Disclosure Schedules, there has not been been, with respect to any Company Entity, any:
(a) effect, event, development, occurrence, fact, condition or change that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the Company Charter Documents or any organizational documents of any other Company Entity;
(c) split, combination or reclassification of any shares of capital stock or other equity capital;
(d) issuance, sale or other disposition of any of its capital stock or other equity interests;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller capital stock or other equity capital or redemption, purchase or acquisition of limited liability company interest capital stock or other equity capital (other than in the Ordinary Course of SellerBusiness consistent with past practice);
(cf) material change in any method of accounting or accounting practice for the Businesspractice, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course of BusinessBusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets entitlements (other than in the Ordinary Course of BusinessBusiness consistent with past practice);
(ik) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Company Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCompany IP Agreements;
(jl) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Company Intellectual Property;
(m) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(kn) any capital investment in, or any loan to, any other Person;
(o) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including any Material Contract Contract) to which any Company Entity is a party or Permit in accordance with its termsby which it is bound;
(lp) material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mq) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assetsproperties, capital stock or assets, tangible or intangible;
(nr) other than as provided for in any written agreement or the Ordinary Course of Business consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $100,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant, other than as provided for in any written agreements provided to Parent prior to the date hereof;
(os) entry by Seller into hiring or promoting any person as or to (as the case may be) the position of an officer or hiring or promoting any employee below officer except in the Ordinary Course of Business;
(t) adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant, except in the Ordinary Course of Business, (ii) Benefit Plan or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pu) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its stockholders or current or former directors, officers and employees;
(qv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(w) other than this Agreement, adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rx) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,000100,000, individually (in the case of a lease, per annum) or $100,000 250,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course of BusinessBusiness consistent with past practice;
(sy) adoption, amendment, modification acquisition by merger or termination by Seller of any bonus, profit sharing, incentive, severanceconsolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such action taken with respect Person or any division thereof;
(z) Tax election made, modified or revoked except as required by applicable Law, adoption or change in any Tax accounting method except as required by applicable Law, amendment to any material Tax Return, consent to any extension (other employee benefit plan)than in connection with the filing of a Tax Return in the ordinary course) or waiver of the limitation period applicable to any Tax claim or assessment, surrender any right to a refund of Taxes, or any closing agreement entered into; or
or (taa) any Contract entered into by Seller to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Vireo Growth Inc.)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Datemost recent date of the Purchaser Financial Statements, and other than in the Ordinary Course consistent with past practice, there has not been been, with respect to the Purchaser, any:
(a) event, occurrence, or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the constating documents of the Purchaser;
(c) split, consolidation, or reclassification of any shares in the Purchaser;
(d) issuance, sale, or other disposition of any shares in the Purchaser, or grant of any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any shares in the Purchaser;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller shares in the Purchaser or redemption, purchase retraction, purchase, or acquisition of limited liability company interest of Sellerits shares;
(cf) material change in any method of accounting or accounting practice for of the BusinessPurchaser, except as required by GAAP or as disclosed in the notes to the Purchaser Financial Statements, if any;
(dg) material change in Sellerthe Purchaser’s cash management practices and its policies, practices practices, and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue revenue, and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption assumption, or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course of Businessconsistent with past practice;
(gj) transfer, assignment, sale sale, or other disposition of any of the assets Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) Purchaser Financial Statements or cancellation of any debts or claims or amendmententitlements, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessCourse;
(ik) transfer, assignment or grant by Seller of any license licence or sublicense sublicence of any material rights under or with respect to any Intellectual Property Assets Corporate IP or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any Corporate IP Agreements of the Intellectual Property is invalid for any reasonPurchaser;
(jl) material damage, destruction or lossdestruction, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to any of its Assets;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material Contract to which the Purchaser is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsby which it is bound;
(lo) any material capital expenditures which would constitute an Assumed Liabilityin excess of $50,000 in the aggregate;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Purchaser Shares or Assets, tangible or intangible;
(nq) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeesits current or former employees, officers, directors, Independent Contractors, or consultants, other than as provided for in any written agreements or required by applicable Law; (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $20,000; or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, Independent Contractor, or consultant;
(or) entry by Seller into hiring or promoting any individual as or to (as the case may be) an officer or hiring or promoting any employee below officer, except to fill a vacancy in the Ordinary Course;
(s) adoption, modification, or termination by Seller of any: (i) employment, severance, retention, or other agreement with any employment agreement current or collective bargaining agreement covering any of the Employeesformer employee, officer, director, Independent Contractor, or consultant; (ii) Benefit Plan; or (iii) Collective Agreement, in each case, whether written or oral, or modification of the terms of any such existing agreement;
(pt) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its Related Parties;
(qu) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) adoption by Seller of any plan of mergeramalgamation, consolidationarrangement, reorganization, liquidation liquidation, or dissolution or filing the commencement of any proceedings by the Purchaser or its creditors seeking to adjudicate the Purchaser as bankrupt or insolvent, making a proposal with respect to the Purchaser under any Law relating to bankruptcy, insolvency, reorganization, arrangement or compromise of debts or similar laws, appointment of a petition in bankruptcy under trustee, receiver, receiver-manager, agent, custodian, or similar official for the Purchaser or for any provisions substantial part of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Lawits Assets;
(rw) purchase, lease lease, or other acquisition of the right to own, use use, or lease any property or assets of Seller in Assets for an amount in excess of $25,00020,000, individually (in the case of a lease, per annum) or $100,000 20,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course of Businessconsistent with past practice;
(sx) adoption, amendment, modification acquisition by amalgamation or termination by Seller of any bonus, profit sharing, incentive, severancearrangement with, or by purchase of a substantial portion of the assets or shares of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such Person or any division thereof;
(y) action taken with respect by the Purchaser to make, change, or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action, or enter into any other employee benefit plan)transaction that would have the effect of increasing the Tax liability or reducing any Tax asset or attribute of the Purchaser; or
(tz) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as set forth in Section 3.08 of the Disclosure Schedules, since the Interim Balance Sheet Date, the business of the Company has been conducted in the ordinary course of business consistent with past practice, and there has not been been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller its capital stock which remain unpaid or unsatisfied as of the Closing, or redemption, purchase or acquisition of limited liability company interest of Sellerits capital stock;
(cf) material change in any method of accounting or accounting practice for of the BusinessCompany, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Seller’s the Company's cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims entitlements shown or amendment, termination or waiver of any rights constituting Purchased Assets other than reflected in the Ordinary Course Balance Sheet, except with respect to sales of Businessinventories or other actions taken in the ordinary course of business;
(ik) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Company Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCompany IP Agreements;
(jl) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Company Intellectual Property;
(m) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(kn) capital investment in, or loan to, any other Person;
(o) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract) to which the Company is a party or Permit in accordance with its termsby which it is bound;
(lp) material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mq) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased AssetsCompany properties, capital stock or assets, tangible or intangible;
(nr) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements, or any required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $50,000 on an annual basis, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(os) entry by Seller into hiring or termination by Seller promoting of any employment agreement person as or collective bargaining agreement covering to (as the case may be) an officer, director, manager, or vice-president, or hiring or promoting any of the Employeesforegoing, except to fill a vacancy in the ordinary course of business;
(t) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan (as defined below) or (iii) collective bargaining or other agreement with a Union (as defined below), in each case whether written or oral, or modification of the terms of any such existing agreement;
(pu) loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its stockholders or current or former directors, officers and employees;
(qv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(w) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rx) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory, supplies, or supplies other assets in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sy) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(z) action by the Company to make, change or rescind any tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the tax liability or reducing any tax asset of Buyer in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(taa) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice or as set forth in Section 4.06 of the Disclosure Schedules, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller's capital stock or redemption, purchase or acquisition of limited liability company interest of Seller's capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if anyGAAP;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeesemployees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $10,000.00, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, consultant or independent contractor of the Business;
(o) entry by Seller into adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(p) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesdirectors, officers or employees of the Business;
(q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000.00, individually (in the case of a lease, per annum) or $100,000 25,000.00 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, except as set forth on Schedule 4.07, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s membership interests or redemption, purchase or acquisition of limited liability company interest of Seller’s membership interests;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material ContractContract other than in the ordinary course of business;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any sublicenses granted in the ordinary course of the Intellectual Property is invalid for any reasonbusiness consistent with past practice;
(j) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee of the Business or any termination by Seller of any employment agreement employees for which the aggregate costs and expenses exceed $5,000, or collective bargaining agreement covering (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hiring or promoting any person as or to (as the case may be) a senior executive position or hiring or promoting any employee below such position except to fill a vacancy in the ordinary course of business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in connection with the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)Business, except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(su) adoptionamendment or change to Seller’s Operating Agreement or other organizational documents;
(v) any Tax election made, amendment, modification or termination by Seller change to Seller’s method of Tax accounting or settled any claim for Taxes;
(w) settlement of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Action by Seller; or
(tx) any Contract entered into by Seller or agreement, whether in writing or otherwise, to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as expressly contemplated by this Agreement or as set forth on Section 4.05 of the Disclosure Schedules, from the Interim Balance Sheet DateStatement Date until the date of this Agreement, Seller has operated the Business in the ordinary course of business consistent with past practice in all material respects and there has not been been, with respect to the Business, any:
(a) event, occurrence or development that has had, or would reasonably be expected to have a Material Adverse Effect;
(b) declaration or payment imposition of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business;
(g) transfer, assignment, sale or other disposition of Encumbrance upon any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of BusinessPermitted Encumbrances;
(hc) cancellation increase in the compensation of any debts or claims or amendmentEmployees, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets;
(n) other than as provided for in any written agreement agreements or in the ordinary course of business consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employeepractices;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(qd) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(re) purchasechange in any Tax election, lease change to any annual Tax accounting period, adoption of or change to any method of Tax accounting, filing of any amended Tax Return, entering into of any closing agreement with respect to Taxes, settlement of any Tax claim or assessment, creation of any Lien for Taxes upon any of the Purchased Assets (other than Liens for current Taxes not yet due and payable);
(f) sale, transfer, lease, license or other acquisition disposition of any of the right Purchased Assets shown or reflected in the Interim Statement, except for the sale of products in the ordinary course of business consistent with past practices;
(g) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets, except in the ordinary course of business consistent with past practices;
(h) material change in the manner in which the Business extends discounts, credits or warranties to owncustomers or otherwise deals with its customers;
(i) material casualty, damage, destruction or loss affecting, or material interruption in the use of, whether or lease not covered by insurance, the Purchased Assets or the Business;
(j) commencement or settlement of any property or assets of Seller in litigation involving an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, 25,000 for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course of Businessone case;
(sk) adoption, amendment, modification settlement or termination by Seller compromise of any bonusclaims that would have been Purchased Assets;
(l) other than in the ordinary course of business consistent with past practices, profit sharingentry into, incentiveextending, severancematerially amending, cancelling or other plan, terminating any Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)that is a Purchased Asset; or
(tm) any Contract entered into by Seller agreement to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Higher One Holdings, Inc.)
Absence of Certain Changes, Events and Conditions. Since December 31, 2012, there has not been any event, occurrence or development that has had, or could reasonably be expected to have, individually or in the Interim Balance Sheet Dateaggregate, a Material Adverse Effect. Except as set forth in Section 4.6 of the Disclosure Schedule, since December 31, 2012, the Business has been conducted in the ordinary course consistent with past practice, and there has not been any:
(a) Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(db) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ec) material change in Seller’s relationship with any customer, vendor, or supplier related to the Business;
(d) entry by Seller into any Contract that would constitute a Material Contract;
(fe) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gf) transfer, assignment, sale or other disposition of any of the assets shown or reflected Purchased Assets other than in the Balance Sheet that would fall within a category ordinary course of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hg) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(ih) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any except in the ordinary course of the Intellectual Property is invalid for any reasonbusiness;
(ji) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kj) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures which would constitute an Assumed Liability;
(ml) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(nm) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or any general wage or salary increases in respect of any Employees, employees of the Business or any other change in the terms of employment such employment, other than as provided for in any written agreements or in the ordinary course of business consistent with Seller for any Employeepast practice or to the extent required pursuant to applicable Law;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(pn) loan by Seller to, or entry by Seller into any other transaction with, any Employeesemployee of the Business;
(qo) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rp) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sq) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other similar plan, Contract or commitment for the benefit of any Employees employee of the Business (or including any such action taken with respect to any other employee benefit plan)Benefit Plan) except as required by applicable Law or as conducted in the ordinary course of business consistent with past practice; or
(tr) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the BusinessSeller, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dc) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, other than the Excluded Receivables, establishment of reserves for uncollectible Accounts Receivable, other than the Excluded Receivables, accrual of Accounts Receivable, inventory controlother than the Excluded Receivables, prepayment of expenses, payment of trade accounts payable, material change in cash management practices and policies, and accrual of other expenses, expenses and deferral of revenue and acceptance of customer depositsrevenue;
(ed) entry by Seller into any Contract that would constitute a Material Contract;
(fe) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gf) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of BusinessSheet;
(hg) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in Assets, except as disclosed on Section 4.06(g) of the Ordinary Course of BusinessDisclosure Schedules;
(ih) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonLicenses;
(ji) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kj) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures which would constitute an Assumed Liability;
(ml) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(qm) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(tn) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since December 31, 2014, except as disclosed in the Interim Balance Sheet DateSeller's public filings that have been filed with the Securities and Exchange Commission, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dc) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ed) entry by Seller into any Contract that would constitute a Material Contract, excluding the Asset Purchase Agreement entered into on April 1, 2015 with B&R Liquid Adventure, LLC;
(fe) other than the Encumbrance related to the Pinnacle Obligation to be assumed by B▇▇▇▇, the incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gf) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsFinancial Statements, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hg) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(ih) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonLicenses;
(ji) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kj) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures which would constitute an Assumed Liability;
(ml) other than the Encumbrance related to the Pinnacle Obligation to be assumed by B▇▇▇▇, the imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(nm) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or any general wage or salary increases in respect of any Employees, other than as provided for in any written agreements or any consistent with past practice, or change in the terms of employment with Seller for any Employee;
(on) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement, with the exception of an employment agreement the Seller entered into with R▇▇▇ ▇▇▇▇▇▇▇;
(po) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(qp) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
; (rq) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,0005,000.00, individually (in the case of a lease, per annum) or $100,000 10,000.00 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sr) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit planBenefit Plan); or
(ts) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Purchase Agreement (American Brewing Company, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as set forth on Section 3.08 of the Interim Balance Sheet DateDisclosure Schedules, since January 1, 2015, there has not been been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the Company Charter Documents;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller its capital stock or redemption, purchase or acquisition of limited liability company interest of Sellerits capital stock;
(cf) material change in any method of accounting or accounting practice of the Company for the Businesstax or book purposes, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Sellerthe Company’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract, other than in the ordinary course of business consistent with past practice;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendmententitlements, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Company Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any Company IP Agreements, other than in the ordinary course of the Intellectual Property is invalid for any reasonbusiness consistent with past practice;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(km) accelerationcapital investment in, terminationor any loan to, any other Person;
(n) material modification to any Material Contract (except to the extent that the Company has made a copy of such modification available to Parent), or acceleration, termination or cancellation of any Material Contract (or Permit other than the expiration or termination of any Contract that would have constituted a Material Contract had it not been so accelerated, terminated or Permit in accordance with its termscancelled);
(lo) material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased AssetsCompany properties, capital stock or assets, tangible or intangible;
(ni) other than as provided for in any written agreement or consistent with past practicesince the Balance Sheet Date, grant by Seller of any bonuses, whether monetary or otherwise, in an individual amount in excess of $50,000, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants or their spouses, dependents or beneficiaries, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employee which has resulted, or would upon termination of employment result, in aggregate additional costs and expenses to the Company in excess of $50,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant or their spouses, dependents or beneficiaries;
(or) entry hiring or promoting any person as or to (as the case may be) an officer;
(s) adoption, modification or termination, of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, other than termination for cause pursuant to the terms of the applicable agreement, (ii) Benefit Plan (other than as required by Seller into applicable Law) or termination by Seller of any employment agreement or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pt) loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its Stockholders or current or former directors, officers or employees other than issuances of its capital stock to such Persons;
(qu) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) amend any Contract with any customer to make any material change in the commercial terms of such agreement (i.e. pricing, rebates, payment terms, etc.), other than in the ordinary course of business with respect to pricing proposals;
(w) except for the Merger, adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rx) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $100,000 150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sy) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(z) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax Liability of Parent, the First Step Surviving Corporation or the Final Surviving Company in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(taa) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, the Business has been conducted in the ordinary course of business consistent with past practice, and there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any material Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any sublicenses granted in the ordinary course of the Intellectual Property is invalid for any reasonbusiness consistent with past practice;
(j) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, Encumbrance (other than a Permitted Encumbrance, Encumbrances) upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee of the Business or any termination by Seller of any employment agreement employees for which the aggregate costs and expenses exceed $1,000 or collective bargaining agreement covering (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,0001,000, individually (in the case of a lease, per annum) or $100,000 5,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(su) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller's capital stock or redemption, purchase or acquisition of limited liability company interest of Seller's capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $10,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
(o) entry by Seller into hiring or termination by Seller promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreementbusiness;
(p) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(q) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qr) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rs) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,0005,000, individually (in the case of a lease, per annum) or $100,000 10,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except (i) as expressly contemplated by this Agreement, (ii) for any action taken at the direction of Buyer, or (iii) as set forth on Section 4.05 of the Disclosure Schedules, from the Interim Balance Sheet DateDate until the date of this Agreement, Seller has operated the Business in the ordinary course of business consistent with past practice and there has not been been, with respect to the Business, any:
(a) event, occurrence or development that has had a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller incurrence of any indebtedness for borrowed moneymoney in connection with the Business in an aggregate amount exceeding $100,000, except unsecured current obligations and Liabilities liabilities incurred in the Ordinary Course ordinary course of Businessbusiness including through intercompany accounts;
(gc) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness consistent with past practice;
(hd) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than Assets, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ie) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures in an aggregate amount exceeding $100,000 which would constitute an Assumed Liability;
(mf) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets, except for Permitted Encumbrances;
(ng) increase in the compensation of any Employees or any increase in the benefits provided to any Employees under any Benefit Plan, other than (i) as provided for in any written agreement agreements; (ii) the new 2014 healthcare plan for salaried Employees; or (iii) in the ordinary course of business consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(qh) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(ri) purchase, lease purchase or other acquisition of the right to own, use or lease any property or assets of Seller in asset that constitutes a Purchased Asset for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)50,000, except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(tj) any Contract entered into by Seller agreement to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, except as set forth in Section 4.06 of the Disclosure Schedules, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dc) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts ReceivableReceivables, establishment of reserves for uncollectible Accounts ReceivableReceivables, accrual of Accounts ReceivableReceivables, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(d) failure to make commercially reasonable efforts to preserve and protect the goodwill of Seller and its relationships with clients, customers, suppliers, referral sources and other persons having business relationships with the Business;
(e) entry by Seller into any Contract that would constitute a Material Contract, other than in the ordinary course of business consistent with past practices;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, in excess of $15,000 except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, provided; however, that the Bank of America Indebtedness is the subject of negotiations with respect to the refinancing thereof, and may be modified, refinanced, or replaced, prior to Closing;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business business, dispositions of obsolete items, and the collection items of Accounts Receivable in the Ordinary Course of Businessbelow standard quality;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets Assets, with a value in excess of $15,000, other than in the Ordinary Course ordinary course of Businessbusiness, consistent with past practices;
(i) transfer, assignment or grant by Seller of any license license, waiver, covenant not to s▇▇, sublicense or sublicense of other permission under any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any Licenses, other than in the ordinary course of the Intellectual Property is invalid for any reasonbusiness, consistent with past practices;
(j) material damage, destruction or loss, or any material interruption in use, of any material Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit Permit, other than in the expiration or termination ordinary course of any Material Contract or Permit in accordance business, consistent with its termspast practices;
(l) material capital expenditures in excess of $100,000 which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets, with the exception of the Bank of America Indebtedness, and any modification, refinancing or replacement thereof;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or any general wage or salary increases in respect of any current or former Employees, consultants or any officers of Seller, or other change in the material terms of employment with Seller for any EmployeeEmployee or entry into a material agreement with any Employee other than as provided for in any written agreements or consistent with past practice in the ordinary course of business;
(o) entry by Seller into into, termination of, adoption of or termination by Seller of amendment to, in any employment material respect, any change in control or severance agreement or any other Benefit Plan or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction (other than in the ordinary course of business consistent with past practices) with, any Employees;
(q) adoption, amendment, modification or termination of any Benefit Plan;
(r) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rs) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,000100,000, individually (in the case of a lease, per annum) or $100,000 200,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(t) any Contract entered into by Seller to do any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (MWI Veterinary Supply, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as set forth in the Interim Balance Sheet DateParent SEC Filings, since June 30, 2020, and other than or in the ordinary course of business consistent with past practice, there has not been been, with respect to Parent, any:
(a) event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect;,
(b) declaration or payment of any dividends dividend or distributions on distribution of cash or in respect of other property to its stockholders or purchased, redeemed or made any limited liability company interest of Seller or redemption, agreements to purchase or acquisition redeem any shares of limited liability company interest its capital stock,
(c) issuance of Sellerequity securities;
(cd) split, combination or reclassification of any shares of its capital stock;
(e) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(f) material change in any method of accounting or accounting practice of Parent for the Businesstax or book purposes, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in SellerParent’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Parent Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except for unsecured current obligations and Liabilities liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Parent Latest Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets Parent IP or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonParent IP Agreements;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Parent Material Contract (including, but not limited to, any Parent Material Contract) to which Parent is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsby which it is bound;
(lo) any material capital expenditures which would constitute an Assumed Liabilityin excess of $10,000 in the aggregate;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, material Lien upon any of the Purchased AssetsParent properties, capital stock or assets, tangible or intangible;
(nq) (i) grant of any bonuses, other than as provided for in any written agreement agreements, required by applicable Law or consistent with past practice, grant by Seller (ii) any material increase in the base salary of any bonuses, whether monetary officer or otherwise, any general wage employee of Parent; or salary increases in respect (iii) action to accelerate the vesting or payment of any Employees, compensation or any change in the terms of employment with Seller benefit for any Employeecurrent or former employee, officer, director, independent contractor or consultant;
(or) entry adoption, modification or termination, of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, other than termination for cause or consistent with past practice, (ii) Parent Employee Plan other than as required by Seller into applicable Law or termination by Seller of any employment agreement or (iii) collective bargaining or other agreement covering any of the Employeeswith a union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(ps) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its stockholders or current or former directors, officers and employees;
(qt) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(u) except for the Merger, adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rv) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sw) adoption, amendment, modification acquisition by merger or termination by Seller of any bonus, profit sharing, incentive, severanceconsolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such Person or any division thereof;
(x) action taken with respect by Parent to make, change or rescind any Tax election, amend any Parent Return or take any position on any Parent Return, take any action, omit to take any action or enter into any other employee benefit plan)transaction that would have the effect of increasing the Tax liability of Parent or the Surviving Corporation after the consummation of the Merger;
(y) amendment of the Parent Organization Documents; or
(tz) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Logiq, Inc.)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, except as disclosed in any schedule to this Agreement, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $1,000.00 or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
(o) entry by Seller into adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(p) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business, except as listed on Schedule 4.06(p) to the Disclosure Schedules;
(q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,0002,000.00, individually (in the case of a lease, per annum) or $100,000 1,000.00 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory Inventory, materials, equipment or supplies in the Ordinary Course ordinary course of Business;business consistent with past practice; or
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Innovative Food Holdings Inc)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, (i) with respect to the Company, other than in the ordinary course of business consistent with past practice, there has not been anyan occurrence of any of the events set forth below and (ii) with respect to ▇▇▇▇▇▇▇▇, none of the events set forth below have occurred:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of its charter, by-laws or other organizational documents;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller its capital stock or redemption, purchase or acquisition of limited liability company interest of Sellerits capital stock;
(cf) material change in any method of accounting or accounting practice for the Businesspractice, except as required by GAAP or IFRS or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Seller’s its cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contractis material to the Company’s business other than Contracts that have been disclosed in the Disclosure Schedules;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness Indebtedness for borrowed money, except except, with respect to the Company, unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice in the aggregate amount not exceeding $100,000;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonProperty;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(km) any material capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract) to which the Company is a party or Permit in accordance with its termsby which it is bound;
(lo) any material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mp) imposition of any Encumbrance, Encumbrance (other than a Permitted Encumbrance, Encumbrances) upon any of the Purchased Assetsits properties, capital stock or assets, tangible or intangible;
(nq) other than as provided for in any written agreement or consistent with past practicerespect to the Company, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $100,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, independent contractor or consultant;
(or) entry by Seller into with respect to the Company, adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan, or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(ps) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its stockholders, directors, officers and employees;
(qt) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(u) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rv) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in assets, except, with respect to the Company, for an amount in excess of $25,000100,000, individually (in the case of a lease, per annum) ), or $100,000 250,000, or in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sw) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(x) action by ▇▇▇▇▇▇▇▇ or the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(ty) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Absence of Certain Changes, Events and Conditions. Since Other than as set forth in the Interim Balance Sheet DateSEC Reports or as contemplated by this Agreement or Transaction Documents, since the date of the Reliability Financial Statements, and other than in the Ordinary Course of Business, there has not been been, with respect to Reliability, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse EffectEffect on Reliability or Merger Sub;
(b) amendment of the charter, by-laws or other Organizational Documents of Reliability or Merger Sub;
(c) split, combination or reclassification of any shares of the capital stock of Reliability or Merger Sub;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of the capital stock of Reliability or Merger Sub;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller the capital stock of Reliability or Merger Sub or redemption, purchase or acquisition of limited liability company interest of Sellerthe capital stock Reliability or Merger Sub;
(cf) material change in any method of accounting or accounting practice for the Businessof Reliability or Merger Sub, except as required by GAAP or as disclosed in the notes to the Reliability Financial Statements, if any;
(dg) material change in SellerReliability’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any material indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business;
(gj) transfer, assignment, sale or other disposition of any material amount of the assets shown or reflected in the Balance Sheet that would fall within a category Reliability Financial Statements or cancellation of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessany material debts or material entitlements;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Reliability Owned Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonProperty;
(jl) material damage, material destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to property of Reliability or Merger Sub, except for ordinary wear and tear;
(km) any capital investment by Reliability or Merger Sub in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material Contract to which Reliability or Permit other than the expiration Merger Sub is a party or termination of any Material Contract or Permit in accordance with its termsby which it is bound;
(lo) material any capital expenditures which would constitute an Assumed Liabilityby Reliability or Merger Sub in excess of $5,000;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased AssetsReliability’s or Merger Sub’s properties, capital stock or assets, tangible or intangible;
(nq) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of Reliability’s or Merger Sub’s employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees of Reliability or Merger Sub, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, independent contractor or consultant of Reliability or Merger Sub;
(or) entry by Seller into adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant of Reliability or Merger Sub, or (ii) collective bargaining or other agreement covering any of the Employeeswith a union, in each case whether written or oral, involving Reliability or modification of the terms of any such existing agreementMerger Sub;
(ps) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof Reliability’s or Merger Sub’s stockholders, directors, officers and employees;
(qt) entry into a material new line of business or abandonment or discontinuance of existing material lines of business by Reliability or Merger Sub;
(u) adoption by Seller Reliability or Merger Sub of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it either Reliability or Merger Sub under any similar Law;
(rv) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course of Business, in each case by or with respect to Reliability or Merger Sub;
(sw) adoption, amendment, modification acquisition by merger or termination by Seller of any bonus, profit sharing, incentive, severanceconsolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such action taken with respect to Person or any other employee benefit plan)division thereof by Reliability or Merger Sub; or
(tx) action by Reliability or Merger Sub to make, change or rescind any Contract entered Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into by Seller to do any other transaction that would have the effect of increasing the foregoingTax liability or reducing any Tax asset of Reliability in respect of any Post-Closing Tax Period.
Appears in 1 contract
Sources: Merger Agreement (Reliability Inc)
Absence of Certain Changes, Events and Conditions. Since the Interim Captus Entities Balance Sheet Date, and other than in the Ordinary Course consistent with past practice, there has not been been, with respect to the Captus Entities, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the Articles, by-laws, partnership agreements, unanimous shareholder agreement or other constating documents of the Captus Entities;
(c) split, consolidation or reclassification of any shares or units, as applicable, in the Captus Entities;
(d) issuance, sale or other disposition of any shares or units, as applicable, in the Captus Entities, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any shares or units, as applicable, in the Captus Entities;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller shares or units, as applicable, in the Captus Entities or redemption, retraction, purchase or acquisition of limited liability company interest of Sellerits shares or units, as the case may be;
(cf) material change in any method of accounting or accounting practice for of the BusinessCaptus Entities, except as required by GAAP ASPE or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Seller’s either of the Captus Entities’ cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Captus Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course of Businessconsistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets Assets shown or reflected in the Captus Entities’ Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) Sheets or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ik) transfer, assignment or grant by Seller of any license licence or sublicense sublicence of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCaptus Entities’ Corporate IP or Corporate IP Agreements;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to any of the Captus Entities’ material Assets;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Captus Material Contract to which any Captus Entity is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures by which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employeeit is bound;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreementmaterial capital expenditures;
(p) imposition of any Encumbrance other than Permitted Encumbrances upon any of the BTG Energy Purchased Interests, West Lake Purchased Interests or the Captus Entities’ Assets, tangible or intangible;
(q) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its Related Persons;
(qr) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(s) adoption by Seller of any plan of mergeramalgamation, consolidationarrangement, reorganization, liquidation or dissolution dissolution, or filing the commencement of any proceedings by the Captus Entities or their respective creditors seeking to adjudicate either of the Captus Entities as bankrupt or insolvent, making a proposal with respect to either of the Captus Entities under any Law relating to bankruptcy, insolvency, reorganization, arrangement or compromise of debts or similar laws, appointment of a petition in bankruptcy under trustee, receiver, receiver-manager, agent, custodian or similar official for either of the Captus Entities or for any provisions substantial part of federal or state bankruptcy Law or consent to the filing Assets of any bankruptcy petition against it under any similar Laweither of the Captus Entities;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in the Captus Entities’ Assets for an amount in excess of $25,00025,000.00, individually (in the case of a leaseLease, per annum) or $100,000 100,000.00 in the aggregate (in the case of a leaseLease, for the entire term of the leaseLease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course of Businessconsistent with past practice;
(su) adoption, amendment, modification acquisition by amalgamation or termination by Seller of any bonus, profit sharing, incentive, severancearrangement with, or by purchase of a substantial portion of the assets or shares of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such Person or any division thereof;
(v) action taken with respect by either of the Captus Entities to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other employee benefit plan)transaction that would have the effect of increasing the Tax liability or reducing any Tax asset or attribute of either of the Captus Entities; or
(tw) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Share and Unit Purchase Agreement (Gryphon Digital Mining, Inc.)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, the business of SLG has been conducted in the ordinary course of business consistent with past practice, and there has not been been, with respect to SLG, any:
(a) except as set forth in Section 3.08(a) of the Disclosure Schedules, event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of Organizational Document of SLG;
(c) split, combination or reclassification of any membership interests;
(d) issuance, sale or other disposition of any of its membership interests, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its membership interests;
(e) except pursuant to the ADM Redemption Agreement, declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller its membership interests or redemption, purchase or acquisition of limited liability company interest of Sellerits membership interests;
(cf) material change in any method of accounting or accounting practice for the Businessof SLG, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in SellerSLG’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) except as set forth in Section 3.08(h) of the Disclosure Schedules, entry by Seller into any Contract that would constitute a Material Contract;
(fi) except as set forth in Section 3.08(i) of the Disclosure Schedules, incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ik) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any SLG Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonSLG IP Agreements;
(jl) abandonment or lapse of or failure to maintain in full force and effect any SLG IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any Trade Secrets included in SLG Intellectual Property;
(m) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(kn) except as set forth in Section 3.08(n) of the Disclosure Schedules, capital investment in, or loan to, any other Person;
(o) except with respect to the CoBank Indebtedness and Liabilities, acceleration, termination, material modification to or cancellation of any Material Contract to which SLG is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsby which it is bound;
(lp) material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mq) imposition of any Encumbrance, Encumbrance (other than a Permitted Encumbrance, Encumbrances) upon any of the Purchased AssetsSLG’s properties, membership interests or assets, tangible or intangible;
(nr) other than except as provided for in any written agreement or consistent with past practiceset forth on Section 3.08(r) of the Disclosure Schedules, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements, required by applicable Law or any in the ordinary course of business consistent with past practices, (ii) except in the ordinary course of business, change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $100,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(os) entry by Seller into hiring or promoting of any person with a salary (or expected total compensation exclusive of benefits) in excess of $100,000;
(t) except as set forth in Section 3.08(t) of the Disclosure Schedules adoption, modification or termination by Seller of any employment (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pu) loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its current or former members, directors, officers or employees;
(qv) entry into a new line of business or abandonment or discontinuance of any existing line of business;
(w) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rx) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,000250,000, individually (in the case of a lease, per annum) or $100,000 500,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sy) adoptionexcept for the APC Merger, amendmentacquisition by merger or consolidation with, modification or termination by Seller purchase of a substantial portion of the assets or stock of, or by any other manner, any business of any bonusPerson or any division thereof;
(z) action by SLG to make, profit sharingchange or rescind any Tax election, incentiveamend any Tax Return or take any position on any Tax Return, severancetake any action, omit to take any action or enter into any other plan, Contract transaction that would have the effect of increasing the Tax liability or commitment for the benefit reducing any Tax asset of Buyer in respect of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(taa) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been been, with respect to AGB, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the constating documents or other organizational documents of AGB;
(c) split, consolidation or reclassification of any shares in AGB;
(d) issuance, sale or other disposition of any shares in AGB, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any shares in AGB;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller shares in AGB or redemption, retraction, purchase or acquisition of limited liability company interest of Sellerits shares;
(cf) material change in any method of accounting or accounting practice for the Businessof AGB, except as required by GAAP IFRS or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eg) entry by Seller into any Contract that would constitute a Material ContractContract other than with the Purchaser or in connection with the Transaction;
(fh) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except (i) unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice or (ii) with the Purchaser;
(gi) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonentitlements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(k) any capital investment in, or any loan to, any other Person;
(l) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including any Material Contract Contract) to which AGB is a party or Permit in accordance with its terms;
(l) material capital expenditures by which would constitute an Assumed Liabilityit is bound;
(m) imposition of any Encumbrancematerial capital expenditures, other than a Permitted Encumbrance, upon any of the Purchased Assetsunless disclosed in this Agreement;
(n) other than as provided for in imposition of any written agreement Encumbrance upon any of AGB’s properties, shares or consistent with past practiceassets, tangible or intangible;
(i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee or any termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oralemployees, or modification of (iii) action to accelerate the terms vesting or payment of any such existing agreementcompensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(p) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(q) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its shareholders or current or former directors, officers and employees;
(qr) adoption by Seller of any plan of mergeramalgamation, consolidationarrangement, reorganization, liquidation or dissolution or filing the commencement of any proceedings seeking to adjudicate AGB a bankrupt or insolvent, making a proposal with respect to AGB under any law relating to bankruptcy, insolvency, reorganization or compromise of debts or similar laws, appointment of a petition in bankruptcy under trustee, receiver, agent, custodian or similar official for AGB or for any provisions substantial part of federal its properties and assets or state bankruptcy Law a creditor or consent any other Person commences any proceeding against AGB seeking to the filing adjudicate it a bankrupt or insolvent or appointment of a trustee, receiver, agent, custodian or similar official for it or any bankruptcy petition against it under any similar Lawsubstantial part of its properties and assets;
(rs) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(st) adoption, amendment, modification acquisition by amalgamation or termination by Seller of any bonus, profit sharing, incentive, severancearrangement with, or by purchase of a substantial portion of the assets or shares of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such action taken with respect to Person or any other employee benefit plan)division thereof; or
(tu) action by AGB to make, change or rescind any Contract entered Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into by Seller to do any other transaction that would have the effect of increasing the foregoingTax liability or reducing any Tax asset of AGB.
Appears in 1 contract
Sources: Share Purchase Agreement
Absence of Certain Changes, Events and Conditions. Since Except as described in Section 4.06 of the Interim Disclosure Schedule, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller either Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest of either Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP ASPE or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employees, other than as provided for in any written agreements or any required by applicable Law, (ii) change in the terms of employment with Seller for any EmployeeEmployee or any termination of any Employee for which, in each such case, the aggregate costs and expenses exceed $25,000.00, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any Employee under any Employee Plan;
(o) entry by Seller into adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement Employee, (ii) Employee Plan, or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(p) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesdirectors, officers or employees of the Business;
(q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;business consistent with past practice; or
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Datelatest balance sheet date, other than as indicated in the Public Disclosure Record or other than in the ordinary course of business consistent with past practice, there has not been been, with respect to Purchaser, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the articles, by-laws, unanimous shareholder agreement or other organizational documents of Purchaser;
(c) split, consolidation or reclassification of any shares in Purchaser;
(d) except has had been disclosed in the Public Disclosure Record, the issuance, sale or other disposition of any shares in Purchaser, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any shares in Purchaser;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller shares in Purchaser or redemption, retraction, purchase or acquisition of limited liability company interest of Sellerits shares;
(cf) material change in any method of accounting or accounting practice for the Businessof Purchaser, except as required by GAAP IFRS or as disclosed in the notes to the Financial Statements, if anyfinancial statements;
(dg) material change in Seller’s cash management practices and policiesother than as disclosed to Vendor, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contractmaterial contract;
(fh) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gi) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) balance sheet or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonentitlements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(k) except has had been disclosed in the Public Disclosure Record any capital investment in, or any loan to, any other Person;
(l) acceleration, termination, material modification to or cancellation of any Material material Contract to which Purchaser is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures by which would constitute an Assumed Liabilityit is bound;
(m) imposition of except has had been disclosed in the Public Disclosure Record any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assetsmaterial capital expenditures;
(n) other than as provided for except has had been disclosed in the Public Disclosure Record any written agreement loan to (or consistent with past practice, grant by Seller forgiveness of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to), or entry by Seller into any other transaction with, any Employeesof its shareholders or current or former directors, officers and employees;
(qo) adoption by Seller of any plan of mergeramalgamation, consolidationarrangement, reorganization, liquidation or dissolution or filing the commencement of any proceedings seeking to adjudicate Purchaser a bankrupt or insolvent, making a proposal with respect to Purchaser under any law relating to bankruptcy, insolvency, reorganization or compromise of debts or similar laws, appointment of a petition in bankruptcy under trustee, receiver, agent, custodian or similar official for Purchaser or for any provisions substantial part of federal its properties and assets or state bankruptcy Law a creditor or consent any other Person commences any proceeding against Purchaser seeking to the filing adjudicate it a bankrupt or insolvent or appointment of a trustee, receiver, agent, custodian or similar official for it or any bankruptcy petition against it under any similar Lawsubstantial part of its properties and assets;
(rp) except has had been disclosed in the Public Disclosure Record, purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,000100,000, individually (in the case of a lease, per annum) or $100,000 500,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sq) adoption, amendment, modification acquisition by amalgamation or termination by Seller of any bonus, profit sharing, incentive, severancearrangement with, or by purchase of a substantial portion of the assets or shares of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such action taken with respect to Person or any other employee benefit plan)division thereof; or
(tr) action by Purchaser to make, change or rescind any Contract entered Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into by Seller to do any other transaction that would have the effect of increasing the foregoingTax liability or reducing any Tax asset of Purchaser.
Appears in 1 contract
Sources: Share Purchase Agreement
Absence of Certain Changes, Events and Conditions. Since Except as set forth on Parent Disclosure Schedule 4.19 or the Interim Balance Sheet DateParent SEC Filings, since December 31, 2014, and other than or in the ordinary course of business consistent with past practice, there has not been been, with respect to Parent, any:
(a) event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect;,
(b) declaration or payment of any dividends dividend or distributions on distribution of cash or in respect of other property to its stockholders or purchased, redeemed or made any limited liability company interest of Seller or redemption, agreements to purchase or acquisition redeem any shares of limited liability company interest its capital stock,
(c) issuance of Sellerequity securities;
(cd) amendment of Parent Organizational Documents;
(e) split, combination or reclassification of any shares of its capital stock;
(f) issuance, sale or other disposition of any of its capital stock (other than in connection with the exercise of Parent Options as required by the terms of such Parent Options), or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(g) material change in any method of accounting or accounting practice of Parent for the Businesstax or book purposes, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dh) material change in Seller’s Parent's cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ei) entry by Seller into any Contract that would constitute be required to be disclosed on a Material ContractCurrent Report on Form 8-K;
(fj) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except for unsecured current obligations and Liabilities liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gk) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Parent Latest Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(il) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets Parent IP or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonParent IP Agreements;
(jm) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(kn) any capital investment in, or any loan to, any other Person;
(o) acceleration, termination, material modification to or cancellation of any Parent Material Contract (including, but not limited to, any Parent Material Contract) to which Parent is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsby which it is bound;
(lp) any material capital expenditures which would constitute an Assumed Liabilityin excess of $50,000 in the aggregate;
(mq) imposition of any Encumbrance, other than a Permitted Encumbrance, material Lien upon any of the Purchased AssetsParent properties, capital stock or assets, tangible or intangible;
(nr) (i) grant of any bonuses, other than as provided for in any written agreement agreements, required by applicable Law or consistent with past practice, grant by Seller (ii) any material increase in the base salary of any bonuses, whether monetary officer or otherwise, any general wage employee of Parent; or salary increases in respect (iii) action to accelerate the vesting or payment of any Employees, compensation or any change in the terms of employment with Seller benefit for any Employeecurrent or former employee, officer, director, independent contractor or consultant;
(os) entry hiring or promoting any person as or to (as the case may be) an officer without the express consent of the Company;
(t) adoption, modification or termination, of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, other than termination for cause or consistent with past practice, (ii) Parent Employee Plan other than as required by Seller into applicable Law or termination by Seller of any employment agreement or (iii) collective bargaining or other agreement covering any of the Employeeswith a union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pu) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its stockholders or current or former directors, officers and employees;
(qv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(w) except for the Merger, adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rx) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sy) adoption, amendment, modification acquisition by merger or termination by Seller of any bonus, profit sharing, incentive, severanceconsolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other planmanner, Contract or commitment for the benefit of any Employees (business or any such Person or any division thereof;
(z) action taken with respect by Parent to make, change or rescind any Tax election, amend any Parent Return or take any position on any Parent Return, take any action, omit to take any action or enter into any other employee benefit plan)transaction that would have the effect of increasing the Tax liability of Parent or the Surviving Company after the consummation of the Merger; or
(taa) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Ruthigen, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as set forth on Section 3.08 of the Interim Disclosures Schedules and since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been been, with respect to the Target Company Group, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company or any Subsidiary;
(c) split, reverse split, combination or reclassification of any shares of the Company’s capital stock;
(d) issuance, sale or other disposition of any of the Company’s capital stock (other than in connection with the exercise of Options outstanding on the date of this Agreement as required by the terms of such Options), or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller the Company’s capital stock or redemption, purchase or acquisition of limited liability company interest of Sellerthe Company’s capital stock;
(cf) material change in any method of accounting or accounting practice for or principles of the BusinessTarget Company Group, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Sellerthe Target Company Group’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Company Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCompany IP Agreements;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to the property of the Company or any Subsidiary;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract) to which the Company or Permit in accordance with its termsany Subsidiary is a party or by which it is bound;
(lo) any material capital expenditures which would constitute an Assumed Liabilityof any of the Target Company Group;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased AssetsTarget Company Group properties, capital stock or assets, tangible or intangible;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) material change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee or any termination by Seller of any employment agreement officers or collective bargaining agreement covering any of the Employees, written or oralkey employees, or modification of (iii) action to accelerate the terms vesting or payment of any such existing compensation or benefit for any current or former employee, officer, director, independent contractor or consultant, except as required by written agreement;
(pr) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) other than in the ordinary course of business consistent with past practices adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan (except as may be required by applicable Law) or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof the Company’s stockholders or current or former directors, officers and employees;
(qu) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rw) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sx) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(y) action by the Target Company Group to make, change or rescind any material Tax election or amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability of Parent in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(tz) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as set forth in Schedule 3.06, since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been been, with respect to Scouted’s Business, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment amendment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Sellerthe Scouted Charter Documents;
(c) material change in any method of accounting or accounting practice for the Businessof Scouted, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in SellerScouted’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material ContractContract except with Recruiter or Newco;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business;
(g) transfer, assignment, sale sale, or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts debts, entitlements or claims claims, or amendment, termination or waiver of any rights constituting Purchased Assets Assets, other than in the Ordinary Course of Businessto Recruiter or an Affiliate thereof;
(ig) transfer, assignment assignment, or grant by Seller of any license or sublicense of any material rights under or with respect to any Scouted Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonScouted IP Agreements;
(jh) material damage, destruction or lossdestruction, or any material interruption in use, loss of any Purchased Assets, Assets (whether or not covered by insurance);
(ki) capital investment in, or any loan to, any other Person;
(j) acceleration, termination, material modification to to, or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures which would constitute an Assumed Liability;
(ml) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets, other than any Permitted Encumbrance;
(nm) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension, or salary increases other compensation or benefits in respect of any Employeesits current or former employees, officers, directors, managers, independent contractors, or consultants, other than (A) as provided for in any written agreements , (B) a distribution of the Purchase Price to any current or former employees, officers, directors, managers, independent contractors, or consultants of Scouted, (C) as required by applicable Law, or (D) in the ordinary course of business and consistent with past practice, (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $10,000 per annum, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, manager, independent contractor, or consultant;
(n) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(o) entry by Seller into adoption, modification, or termination by Seller of any: (i) employment, severance, retention, or other agreement with any employment agreement current or former employee, officer, director, manager, independent contractor, or consultant, except in the ordinary course of business and consistent with past practice, or (ii) Benefit Plan collective bargaining or other agreement covering any of the Employeeswith a union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its Shareholders or current or former officers, directors and employees (other than the payment of compensation to employees in the ordinary course of business and consistent with past practice);
(q) abandonment or discontinuance of the Business;
(r) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation liquidation, or dissolution dissolution, or filing of a petition in bankruptcy under any provisions of federal bankruptcy Law or state bankruptcy insolvency Law or consent to the filing of any bankruptcy or insolvency petition against it under any similar Law;
(rs) purchase, lease or other acquisition of the right to own, use use, or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Absence of Certain Changes, Events and Conditions. Since December 31, 2014, except as disclosed in the Interim Balance Sheet DateSeller's public filings that have been filed with the Securities and Exchange Commission, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dc) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ed) entry by Seller into any Contract that would constitute a Material Contract, excluding the Asset Purchase Agreement entered into on April 1, 2015 with B&R Liquid Adventure, LLC;
(fe) other than the Encumbrance related to the Pinnacle Obligation to be assumed by Buyer, the incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gf) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsFinancial Statements, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hg) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(ih) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonLicenses;
(ji) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kj) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures which would constitute an Assumed Liability;
(ml) other than the Encumbrance related to the Pinnacle Obligation to be assumed by Buyer, the imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(nm) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or any general wage or salary increases in respect of any Employees, other than as provided for in any written agreements or any consistent with past practice, or change in the terms of employment with Seller for any Employee;
(on) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement, with the exception of an employment agreement the Seller entered into with ▇▇▇▇ ▇▇▇▇▇▇▇;
(po) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(qp) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rq) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,0005,000.00, individually (in the case of a lease, per annum) or $100,000 10,000.00 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
business consistent with past practice; (sr) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit planBenefit Plan); or
(ts) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Brewing Company, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as disclosed on Section 4.6 of the Interim Disclosure Schedules, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any sublicenses granted in the ordinary course of the Intellectual Property is invalid for any reasonbusiness consistent with past practice;
(j) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee of the Business or any termination by Seller of any employment agreement employees for which the aggregate costs and expenses exceed twenty five thousand dollars ($25,000), or collective bargaining agreement covering (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hired, engaged, terminated (without cause), furloughed or temporarily laid off any employee or individual service provider, in each case, whose aggregate annual compensation was or is in excess of $75,000;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00025,000.00, individually (in the case of a lease, per annum) or $100,000 50,000.00 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(tu) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice other than any changes, events or conditions disclosed in the Interim Financial Statements, and other than as set forth in Section 4.06 of the Disclosure Schedules, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dc) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ed) entry by Seller into any Contract that would constitute a Material Contract;
(fe) other than the Loan and the debt financing from Bluevine Capital, Inc. (“Bluevine Capital”) (such debt obligation to Bluevine Capital having been satisfied), the incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gf) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hg) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(ih) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice);
(i) abandonment or lapse of or failure to maintain in full force and effect any claim that Seller has infringed Intellectual Property Registration, or failure to maintain reasonable measures to protect the confidentiality of any third party intellectual property rights or claim that any of Trade Secrets included in the Intellectual Property is invalid for any reasonAssets;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures in excess of $10,000, which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased AssetsAssets other than the Loan and the debt financing from Bluevine Capital (such debt obligation to Bluevine Capital having been satisfied);
(n) adoption, modification or termination of any: (i) employment, severance, retention or other than as provided for in agreement with any written agreement current or consistent with past practiceformer employee, grant by Seller officer, director, independent contractor or consultant of any bonusesthe Business, whether monetary or otherwise, any general wage or salary increases in respect of any Employees(ii) Benefit Plan, or any change in the terms of employment (iii) collective bargaining or other agreement with Seller for any Employeea Union;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rp) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(tq) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cryo Cell International Inc)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Bloxbiz's capital stock or redemption, purchase or acquisition of limited liability company interest of SellerBloxbiz's capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or applicable Law, or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract, other than Intellectual Property Agreements entered into with Bloxbiz’s end users subject to Bloxbiz’s standard online terms of services and in the ordinary course of business;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of BusinessSheet;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements except non-exclusive licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any sublicense pursuant to Bloxbiz’s standard online terms of service granted in the Intellectual Property is invalid for any reasonordinary course of business consistent with past practice;
(j) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(no) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee of the Business or any termination by Seller of any employment agreement employees for which the aggregate costs and expenses exceed $10,000, or collective bargaining agreement covering (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,0005,000, individually (in the case of a lease, per annum) or $100,000 10,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(tu) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Super League Gaming, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as set forth in Section 4.07 of the Interim Target Disclosure Schedules, since the Balance Sheet Date, there has not been anyany of the following with respect to Target:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) change in the authorized or issued Equity Interests of Target;
(c) amendment to the Target Charter Documents or any term of any outstanding Equity Interest of Target;
(d) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Target Ownership Interests or redemption, purchase or acquisition of limited liability company interest of Sellerany Target Ownership Interests;
(ce) material change in any method of accounting or accounting practice for the BusinessTarget, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(df) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eg) entry by Seller into any Contract that would constitute a Material Contract;
(fh) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gi) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of BusinessSheet; rights;
(hj) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;any
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Target Intellectual Property, Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any other than non-exclusive licenses granted in the ordinary course of the Intellectual Property is invalid for any reasonbusiness;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased AssetsTarget’s assets, whether or not covered by insurance;
(km) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased AssetsPermit;
(n) material capital expenditures;
(o) any capital investment in, or any loan to, any other than as provided for in Person;
(p) imposition of any written agreement or consistent with past practice, Encumbrance upon the assets of Target;
(i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeesemployees, officers, directors, independent contractors or consultants, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the annual wages exceed $50,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, consultant or independent contractor;
(or) entry by Seller into adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan, or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(ps) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesstockholders, directors, officers or employees;
(qt) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(u) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rv) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,000, 10,000 individually (in the case of a lease, per annum) or $100,000 25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sw) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(x) action by Target to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Purchaser or the Surviving Company in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(ty) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would or would reasonably be expected to result in any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Teladoc, Inc.)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, the Business has not experienced or suffered any Material Adverse Effect. Without limiting the foregoing, except as set forth on Schedule 4.06 or expressly contemplated or permitted under this Agreement, since the Balance Sheet Date, the Seller has conducted the Business only in the ordinary course consistent with past practice and there has not been any:
(a) Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any material accounting method of accounting or accounting practice for the Business, except as required by GAAP IFRS or as disclosed in the notes to the Financial Statements, if any;
(db) material change in Seller’s cash management practices and policies, practices and procedures of the Business with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ec) entry by Seller into any Contract that would constitute a Material Contract;
(fd) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ge) transfersale, assignment, sale assignment or other disposition transfer of any material assets used in the conduct of the assets shown Business that would have been Purchased Assets had they not been sold, assigned or reflected transferred, other than sales, assignments or transfers of Inventory or obsolete equipment in the Balance Sheet that would fall within a category ordinary course of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness consistent with past practice;
(hf) cancellation of any debts or material claims of the Business or amendment, termination or waiver of any material rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(ig) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets Transferred IP or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonLicenses;
(jh) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(ki) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than Transferred Permit;
(j) failure to repay when due any material obligation of Seller or any of its Affiliates with respect to the expiration Business;
(k) any single capital expenditure or termination commitment for the Business in excess of any Material Contract $100,000 or Permit aggregate capital expenditures in accordance with its termsexcess of $250,000, except as set forth in the capital expenditures budget of the Business that Seller has provided to Buyer;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeesemployees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements, (ii) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $25,000 or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, consultant or independent contractor of the Business, in each case, except (A) as required by applicable Law and (B) with respect to increases in wages and salaries less than, in the aggregate, five percent (5%) of the aggregate compensation of the employees of Seller, consistent with past practices;
(n) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(o) entry by Seller into any loan to (or termination by Seller forgiveness of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to), or entry by Seller into any other transaction with, any Employeesdirectors, officers or employees of the Business;
(qp) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rq) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)50,000, except for purchases of Inventory or supplies in the Ordinary Course ordinary course of business consistent with past practice;
(r) increase, decrease or termination of promotional programs that individually or in the aggregate are material to the Business;, except in the ordinary course of business consistent with past practice; and
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, to Seller’s knowledge, there has not been been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the Organizational Documents of the Company;
(c) split, combination or reclassification of any Partnership interests in the Company;
(d) issuance, sale or other disposition of, or creation of any Encumbrance on, any Partnership interests in the Company, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any Partnership interests in the Company, except pursuant to this Agreement and a separate purchase agreement entered into between Buyer and Waste Management;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Partnership interests in the Company or redemption, purchase or acquisition of limited liability company interest any of Sellerthe Company’s outstanding Partnership interests;
(cf) material change in any method of accounting or accounting practice for of the BusinessCompany, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Sellerthe Company’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Business;business consistent with past practice.
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Interim Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets entitlements other than in the Ordinary Course repayment of Businessthe $244,000 loan to Seller as of September 30, 2015;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Company Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCompany IP Agreements;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract) to which the Company is a party or Permit in accordance with its terms;
(l) material capital expenditures by which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employeeit is bound;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreementmaterial capital expenditures;
(p) imposition of any Encumbrance upon any of the Company’s properties or assets, tangible or intangible;
(q) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its members or current or former managers, officers and employees;
(qr) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(s) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,0005,000, individually (in the case of a lease, per annum) or $100,000 25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(su) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets, modification stock or termination other equity of, or by Seller any other manner, any business or any Person or any division thereof;
(v) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(tw) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (National Waste Management Holdings, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as set forth on Schedule 4.08 of the Interim Disclosure Schedules, since the Balance Sheet Date, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest any of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract or amendment of any Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness Indebtedness for borrowed money, money or other Liability in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of BusinessBusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course ordinary course of Business;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of Seller, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of Seller or any termination of any employees for which the aggregate costs and expenses exceed $5,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of Seller;
(o) entry by Seller into hiring or termination by Seller promoting any person or hiring or promoting any employee with an annual rate of any employment agreement or collective bargaining agreement covering any compensation of the Employees, written or oral, or modification of the terms of any such existing agreementat least Fifty Thousand Dollars ($50,000.00);
(p) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of Seller; (ii) Benefit Plan; or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(q) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of Seller;
(qr) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it Seller under any similar Law;
(rs) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken Business consistent with respect to any other employee benefit plan)past practice; or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as set forth on Section 4.06 of the Disclosure Schedules, since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Sellers’ capital stock or redemption, purchase or acquisition of limited liability company interest of SellerSellers’ capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $25,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
(o) entry by Seller into hiring or termination by Seller promoting any person as or to (as the case may be) an officer/manager or hiring or promoting any employee below officer/manager except to fill a vacancy in the ordinary course of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreementbusiness;
(p) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(q) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qr) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rs) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in connection with the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)Business, except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gulf Island Fabrication Inc)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, the Business has been conducted in the Ordinary Course of Business, and there has not been any:
(a) event, occurrence, or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase purchase, or acquisition of limited liability company interest of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices practices, and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business;
(g) transfer, assignment, sale sale, or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of the Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) cancellation of any debts or claims claims, or amendment, termination termination, or waiver of any rights constituting Purchased Assets;
(i) transfer or assignment of or grant of any license or sublicense under or with respect to any material Intellectual Property Assets other than or Intellectual Property Agreements (except non-exclusive licenses or sublicenses granted in the Ordinary Course of Business;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason);
(j) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction destruction, or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to to, or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, Encumbrance (other than a Permitted Encumbrance, Encumbrances) upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Transaction Employees, independent contractors, or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Transaction Employee;
, or (oiii) entry by Seller into action to accelerate the vesting or termination by Seller payment of any employment agreement compensation or collective bargaining agreement covering benefit for any Transferred Employee, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any other employee except to fill a vacancy in the Ordinary Course of Business;
(q) adoption, modification, or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor, or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers, or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution dissolution, or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease lease, or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of twenty-five thousand ($25,00025,000.00), individually (in the case of a lease, per annum) or fifty-thousand ($100,000 50,000) in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of the Inventory or supplies in the Ordinary Course of Business;
(su) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as set forth in Section 4.08 of the Interim Balance Sheet DateDisclosure Schedules, since June 30, 2019, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest any of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;; without limiting the generality of the forgoing, Seller has not: (i) offered to any Person who owes Accounts Receivable or is otherwise indebted to Seller any cash or other incentive, discount or otherwise induced such Person to accelerate the payment of any amount owed to Seller, (ii) written off or down any Inventory or shipped Inventory on consignment or offered any Person any incentive to accept Seller’s Inventory with a right of return, guaranteed sale or any other mechanism that would incentivize such person to receive Inventory of Seller on an accelerated basis, (iii) paid any expense or payable later than the earliest possible time, or (iv) accrued any expense, deferred any revenue, or accepted any deposits.
(e) entry by Seller into any Contract that would constitute a Material Contract or amendment of any Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money or other Liability in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of BusinessBusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsClosing A&L Schedule, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course ordinary course of Business;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) abandonment or lapse or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of Seller, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by employee of Seller into or any termination by Seller of any employment agreement or collective bargaining agreement covering any of employees for which the Employees, written or oralaggregate costs and expenses exceed $5,000, or modification of (iii) action to accelerate the terms vesting or payment of any such existing agreementcompensation or benefit for any current or former employee, officer, director, consultant or independent contractor of Seller;
(p) hiring or promoting any person except to fill a vacancy in the ordinary course of Business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of Seller; (ii) Benefit Plan; or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of Seller;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it Seller under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken Business consistent with respect to any other employee benefit plan)past practice; or
(tu) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as expressly contemplated by this Agreement or as set forth on Section 4.6 of the Interim Balance Sheet DateDisclosure Schedules, since March 31, 2025, the Seller Parties have operated the Business only in the ordinary course of business consistent with past practices and there has not been been, with respect to the Business, any:
(a) event, occurrence or development that has had, or would reasonably be expected to have, a Material Adverse Effect, or any other material damage, destruction or loss (whether or not covered by insurance);
(b) declaration or payment incurrence of any dividends Debt or distributions on or in respect any other Liability outside the ordinary course of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Sellerbusiness;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsLatest Brand Income Statements, except for the sale of Inventory inventory or consumption of supplies in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hd) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures which would constitute an Assumed Liability;
(me) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(qf) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rg) purchase, lease purchase or other acquisition of the right to own, use or lease any property or assets of Seller in asset that constitutes a Purchased Asset for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)£100,000, except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness;
(sh) adoptionentry into any Material Contract, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Material Contract or commitment for the benefit modification in any material respect of any Employees Material Contract;
(i) change or modification to the Seller Parties’ accounting methods or practices;
(j) material change in the general composition of the assets or Liabilities of the Seller Parties, including, without limitation, any such action taken with respect to acceleration in the collection of accounts receivable or delay in the payment of any other employee benefit plan)accounts payable outside of the ordinary course of business;
(k) cancelation, compromise, waiver, settlement or release of any Proceeding; or
(tl) any Contract entered into by Seller agreement to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wd 40 Co)
Absence of Certain Changes, Events and Conditions. Since Except as set forth in Section 4.08 of the Interim Balance Sheet DateDisclosure Schedules, since June 30, 2019, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest any of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;; without limiting the generality of the forgoing, Seller has not: (i) offered to any Person who owes Accounts Receivable or is otherwise indebted to Seller any cash or other incentive, discount or otherwise induced such Person to accelerate the payment of any amount owed to Seller, (ii) written off or down any Inventory or shipped Inventory on consignment or offered any Person any incentive to accept Seller’s Inventory with a right of return, guaranteed sale or any other mechanism that would incentivize such person to receive Inventory of Seller on an accelerated basis, (iii) paid any expense or payable later than the earliest possible time, or (iv) accrued any expense, deferred any revenue, or accepted any deposits.
(e) entry by Seller into any Contract that would constitute a Material Contract or amendment of any Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money or other Liability in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of BusinessBusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Closing Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course ordinary course of Business;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) abandonment or lapse or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of Seller, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by employee of Seller into or any termination by Seller of any employment agreement or collective bargaining agreement covering any of employees for which the Employees, written or oralaggregate costs and expenses exceed $5,000, or modification of (iii) action to accelerate the terms vesting or payment of any such existing agreementcompensation or benefit for any current or former employee, officer, director, consultant or independent contractor of Seller;
(p) hiring or promoting any person except to fill a vacancy in the ordinary course of Business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of Seller; (ii) Benefit Plan; or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of Seller;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it Seller under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken Business consistent with respect to any other employee benefit plan)past practice; or
(tu) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since Except as set forth on Section 3.08 of the Interim Company Disclosure Letter, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been been, with respect to the Company or its Subsidiaries, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company or any of its Subsidiaries;
(c) split, combination or reclassification of any shares of capital stock;
(d) issuance, sale or other disposition of any capital stock (other than in connection with the termination of Options outstanding prior to the date of this Agreement), or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller capital stock or redemption, purchase or acquisition of limited liability company interest of Sellercapital stock;
(cf) material change in any method of accounting or accounting practice for the Businesspractice, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Sellerthe Company’s or any of its Subsidiaries’ cash management practices and policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Company Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCompany IP Agreements;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract), or Permit group of like Contracts which, when considered in accordance with the aggregate, are material to the Company or any of its termsSubsidiaries, to which the Company or any of its Subsidiaries is a party or by which it is bound;
(lo) material any capital expenditures which would constitute an Assumed Liabilityin excess of $50,000 individually, or $100,000 in the aggregate;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assetsproperties, capital stock or assets, tangible or intangible of the Company or any of its Subsidiaries;
(nq) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant except as may be required by Section 2.09;
(or) entry by Seller into hiring or promoting any person except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pt) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its stockholders or current or former directors, officers and employees;
(qu) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rw) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sx) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(y) action by the Company or any of its Subsidiaries to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Parent in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)Post-Closing Tax Period; or
(tz) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Dateexecution of this Agreement, the Business has been conducted in the ordinary course of business consistent with past practice, and there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsFinancial Statements, except for the sale of Inventory inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any sublicenses granted in the ordinary course of the Intellectual Property is invalid for any reasonbusiness consistent with past practice;
(j) abandonment or lapse of or failure to maintain in full force and effect any material Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any material Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed Liability;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee of the Business or any termination by Seller of any employment agreement employees, or collective bargaining agreement covering (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hiring or promoting any person except to fill a vacancy in the ordinary course of business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in connection with the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), Business except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(su) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Absence of Certain Changes, Events and Conditions. Since Except as expressly contemplated by this Agreement or as set forth in Section 4.06 of the Disclosures Schedule, since the Interim Balance Sheet Date, the Seller has operated the Business in the ordinary course of business in all material respects and other than in the ordinary course of business consistent with past practice and there has not been been, with respect to the Business, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ec) entry by Seller into any Contract that would constitute a Material Contract;
(fd) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed moneymoney in connection with the Business in an aggregate amount exceeding $10,000, except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ge) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Interim Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hf) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than Assets, except in the Ordinary Course ordinary course of Businessbusiness;
(ig) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any material Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice);
(h) abandonment or lapse of or failure to maintain in full force and effect any claim that Seller has infringed material Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any third party intellectual property rights or claim that any of material Trade Secrets included in the Intellectual Property is invalid for any reasonAssets;
(ji) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kj) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures in an aggregate amount exceeding $10,000 which would constitute an Assumed Liability;
(ml) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets, except for Permitted Encumbrances;
(nm) increase in the compensation of any employees, other than as provided for in any written agreement agreements or consistent with past practicein the ordinary course of business;
(n) adoption, grant by Seller termination, amendment or modification of any bonusesBenefit Plan, whether monetary or otherwise, any general wage or salary increases in respect the effect of any Employees, or any change which in the terms aggregate would increase the obligations of employment with the Seller for any Employeeby more than ten percent (10%) of its existing annual obligations to such plans;
(o) entry by Seller into any loan to (or termination by Seller forgiveness of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qp) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rq) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $100,000 20,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(tr) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pressure Biosciences Inc)
Absence of Certain Changes, Events and Conditions. Since January 1, 2023, and other than in the Interim Balance Sheet Dateordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(fc) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Acquired Brand except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gd) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, Assets except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(he) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(if) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets Assets;
(g) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Licenses Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any claim that Seller has infringed any third party intellectual property rights or claim that any of Trade Secrets included in the Intellectual Property is invalid for any reasonAssets;
(jh) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(ki) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lj) material capital expenditures which would constitute an Assumed Liability;
(mk) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(ql) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;; impending bankruptcy
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(tm) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kona Gold Beverage, Inc.)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any change, event, condition, or development that is, or could reasonably be expected to be, individually or in the aggregate, materially adverse to the business, results of operations, condition (financial or otherwise), or assets of the Company. Without limiting the generality or effect of the foregoing, from the Balance Sheet Date through the Closing Date, except as disclosed in Section 3.08 of the Disclosure Schedules, neither the Company nor any Seller has:
(a) disposed of any of the Units;
(b) changed any salaries, sales commissions or other compensation of, or paid any bonuses or extraordinary compensation to, any current or former director, officer, employee, sales representative, consultant or stockholder of the Company, or entered into any employment, severance or similar agreement with any current or former director, officer, employee, sales representative, consultant or stockholder of the Company;
(c) adopted or increased any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement or other Benefit Plan for or with any of its employees;
(d) entered into any transaction, Contract or commitment outside of the ordinary course of business consistent with past practice, or canceled or waived any claim or right outside the ordinary course of business consistent with past practice;
(e) modified or amended in any material respect or terminated any Contract;
(f) entered into, terminated, or received notice of termination of any Contract or transaction;
(g) changed any of its accounting or tax methods, policies, practices, or principles, changed its reserve or accrual amounts or policies, changed any depreciation or amortization policies or previously adopted rates, made or changed any Tax election, filed any amended Tax Return, entered into any closing agreement, settled any Tax claim, consented to any extension or waiver of any limitation period applicable to Taxes, changed any accounting period, or written-off as uncollectible any accounts receivables;
(h) changed any working capital practice, including accelerated any collections of cash or accounts receivables or deferred or delayed payments or failed to make timely accruals, including with respect to accounts payable and Liabilities incurred in the ordinary course of business consistent with past practice;
(i) sold, leased or otherwise disposed of any material asset or property, including any Intellectual Property, outside the ordinary course of business consistent with past practice;
(A) issued any Company equity or issued or granted any option, warrant, registration right, convertible security or other right to acquire or sell any Company equity, (B) retired, redeemed, purchased, withdrawn or otherwise acquired for value any Company equity (including the purchase of warrants, rights, or other options to acquire such interests), or (C) declared or paid any dividends or made any distributions or other payments with respect to any of Company equity;
(k) delayed or postponed the payment of accounts payable and other Liabilities;
(l) created, incurred, assumed or otherwise become liable for any capitalized lease obligations;
(m) created, incurred, assumed or otherwise become liable for any indebtedness;
(n) granted or suffered to exist any Encumbrance on any of its assets or the Units;
(o) terminated or closed any facility, business or operation of the Company;
(p) settled, released or forgiven any claim or litigation or waived any right thereto that relates to the Units or any of the assets of the Company;
(q) taken any action that decreased, removed, sold or otherwise disposed of, or pledged or granted any security interest in, any non-cash assets; or
(r) agreed, whether verbally or in writing, to do any of the foregoing. In addition, since the Balance Sheet Date, there has not occurred any material damage, destruction or casualty loss (whether or not covered by insurance) with respect to any of the assets of the Company. Since the Balance Sheet Date, there has not been any:
(a) Material Adverse Effect;
(b) declaration any event, occurrence, development or payment of any dividends circumstance that has had or distributions could reasonably be expected to have a material adverse effect on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes Company. Notwithstanding anything to the Financial Statementscontrary in this Section 3.08, if any;
(d) material change in Seller’s the Company has distributed all cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business;
(g) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets;
(n) cash equivalents other than as provided for in any written agreement or consistent with past practice, grant contemplated by Seller of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to, or entry by Seller into any other transaction with, any Employees;
(q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(t) any Contract entered into by Seller to do any of the foregoingSection 3.26.
Appears in 1 contract
Sources: Unit Purchase Agreement (Ocean Power Technologies, Inc.)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller's capital stock or redemption, purchase or acquisition of limited liability company interest Seller's capital stock, except as set forth on Section 4.06(b) of Sellerthe Disclosure Schedules;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonAgreements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of Seller, other than as provided for in any written agreements adopted before the Balance Sheet Date or required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of Seller or any termination of any employees for which the aggregate costs and expenses exceed $25,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of Seller other than as provided for in any Benefit Plan;
(o) entry by Seller into hiring or termination by Seller promoting any person as or to (as the case may be) except to fill a vacancy in the ordinary course of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreementbusiness;
(p) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of Seller, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(q) loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of Seller;
(qr) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rs) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(t) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the Ordinary Course of Business consistent with past practice, to Seller’s Knowledge, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller Seller’s capital stock or redemption, purchase or acquisition of limited liability company interest of Seller’s capital stock;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material ContractContract that has not otherwise been disclosed or included as a part of this Agreement;
(f) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of BusinessIndebtedness;
(g) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased AssetsSheet, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any sublicenses granted in the Ordinary Course of the Intellectual Property is invalid for any reasonBusiness consistent with past practice);
(j) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration included in this Agreement, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;
(k) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kl) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lm) material capital expenditures which would constitute an Assumed LiabilityLiability not otherwise disclosed, accounted for, or included as part of this Agreement;
(mn) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment with Seller for any Employee;
(o) entry by Seller into employee of the Business or any termination by Seller of any employment agreement employees for which the aggregate costs and expenses exceed $25,000, or collective bargaining agreement covering (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Employees, written or oral, or modification of the terms of any such existing agreementBusiness;
(p) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer, except to fill a vacancy in the Ordinary Course of Business;
(q) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(r) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qs) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rt) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in connection with the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)Business, except for purchases of Inventory or supplies in the Ordinary Course of BusinessBusiness materially consistent with past practice;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(tu) any Contract entered into by Seller to do any of the foregoing, or any material action or material omission that would result in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Materials Corp)
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(d) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ec) entry by Seller into any Contract that would constitute a Material Contract;
(fd) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ge) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of BusinessSheet;
(hf) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(ig) transfer, transfer or assignment of or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses Agreements (except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice);
(h) abandonment or lapse of or failure to maintain in full force and effect any claim that Seller has infringed material Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any third party intellectual property rights or claim that any of Trade Secrets included in the Intellectual Property is invalid for any reasonAssets;
(ji) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(kj) acceleration, termination, material modification to or cancellation of any Material Assigned Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its termsPermit;
(lk) material capital expenditures which would constitute an Assumed Liability;
(ml) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased Assets, except for Permitted Encumbrances;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements, in the ordinary course of business, or any required by applicable Law, (ii) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $50,000.00, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
(n) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(o) entry by Seller into any loan to (or termination by Seller forgiveness of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to), or entry by Seller into any other transaction with, any Employeescurrent or former directors, officers or employees of the Business;
(qp) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rq) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in connection with the Business for an amount in excess of $25,00050,000.00, individually (in the case of a lease, per annum) or $100,000 150,000.00 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course ordinary course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken business consistent with respect to any other employee benefit plan)past practice; or
(tr) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Datelatest balance sheet date as indicated in the Purchaser Public Disclosure Record or other than in the ordinary course of business consistent with past practice, there has not been been, with respect to Purchaser, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) except with respect the proposed amendment of RVT’s Articles of Incorporation disclosed in the Purchaser’s Annual and Special General Meeting Circular dated August 15, 2016 contained in the Public Disclosure Record, amendment of the articles, Notice of Articles, unanimous shareholder agreement or other organizational documents of Purchaser;
(c) split, consolidation or reclassification of any shares in Purchaser;
(d) except has had been disclosed in the Purchaser Public Disclosure Record, the issuance, sale or other disposition of any shares in Purchaser, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any shares in Purchaser;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller shares in Purchaser or redemption, retraction, purchase or acquisition of limited liability company interest of Sellerits shares;
(cf) material change in any method of accounting or accounting practice for the Businessof Purchaser, except as required by GAAP IFRS or as disclosed in the notes to the Financial Statements, if anyfinancial statements;
(dg) material change other than as disclosed in Seller’s cash management practices and policiesthe Purchaser Public Disclosure Record, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contractmaterial contract;
(fh) except as disclosed in the Public Disclosure Record, incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gi) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) balance sheet or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Business;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonentitlements;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(k) except has had been disclosed in the Purchaser Public Disclosure Record any capital investment in, or any loan to, any other Person;
(l) acceleration, termination, material modification to or cancellation of any Material material Contract to which Purchaser is a party or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(l) material capital expenditures by which would constitute an Assumed Liabilityit is bound;
(m) imposition of except has had been disclosed in the Purchaser Public Disclosure Record any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assetsmaterial capital expenditures;
(n) other than as provided for except has had been disclosed in the Purchaser Public Disclosure Record any written agreement loan to (or consistent with past practice, grant by Seller forgiveness of any bonuses, whether monetary or otherwise, any general wage or salary increases in respect of any Employees, or any change in the terms of employment with Seller for any Employee;
(o) entry by Seller into or termination by Seller of any employment agreement or collective bargaining agreement covering any of the Employees, written or oral, or modification of the terms of any such existing agreement;
(p) loan by Seller to), or entry by Seller into any other transaction with, any Employeesof its shareholders or current or former directors, officers and employees;
(qo) adoption by Seller of any plan of mergeramalgamation, consolidationarrangement, reorganization, liquidation or dissolution or filing the commencement of any proceedings seeking to adjudicate Purchaser a bankrupt or insolvent, making a proposal with respect to Purchaser under any law relating to bankruptcy, insolvency, reorganization or compromise of debts or similar laws, appointment of a petition in bankruptcy under trustee, receiver, agent, custodian or similar official for Purchaser or for any provisions substantial part of federal its properties and assets or state bankruptcy Law a creditor or consent any other Person commences any proceeding against Purchaser seeking to the filing adjudicate it a bankrupt or insolvent or appointment of a trustee, receiver, agent, custodian or similar official for it or any bankruptcy petition against it under any similar Lawsubstantial part of its properties and assets;
(rp) except has had been disclosed in the Purchaser Public Disclosure Record, purchase, lease or other acquisition of the right to own, use or lease any material property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(q) acquisition by amalgamation or arrangement with, or by purchase of a substantial portion of the assets or shares of, or by any other manner, any business or any Person or any division thereof;
(r) action by Purchaser to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Purchaser;
(s) adoption, amendment, modification or termination by Seller (i) grant of any bonusbonuses, profit sharingwhether monetary or otherwise, incentiveor increase in any wages, salary, severance, pension or other plancompensation or benefits in respect of its current or former employees, Contract officers, directors, independent contractors or commitment consultants, other than as provided for in any written agreements or required by applicable Law, (ii) change in the benefit terms of employment for any employee or any termination of any Employees employees, or (iii) action to accelerate the vesting or payment of any such action taken with respect to compensation or benefit for any other employee benefit plan)current or former employee, officer, director, independent contractor or consultant; or
(t) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any Contract entered into by Seller to do any of the foregoingcurrent or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral.
Appears in 1 contract
Sources: Share Purchase Agreement
Absence of Certain Changes, Events and Conditions. Since the Interim Cocrystal Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been been, with respect to Cocrystal, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the certificate of incorporation, bylaws or other organizational documents of Cocrystal;
(c) split, combination or reclassification of any shares of Cocrystal Capital Stock;
(d) issuance, sale or other disposition of any of Cocrystal Capital Stock, or grant of any Cocrystal Options or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its Capital Stock, except for the conversion of Cocrystal preferred stock to Common Stock;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller its Capital Stock or redemption, purchase or acquisition of limited liability company interest its Capital Stock, except in connection with the conversion of Sellerpreferred stock;
(cf) material change in any method of accounting or accounting practice for the Businessof Cocrystal, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in SellerCocrystal’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(eh) entry by Seller into any Contract that would constitute a Material Contract;
(fi) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gj) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than entitlements except as incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ik) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonProperty;
(jl) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, loss (whether or not covered by insurance) to its property;
(km) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract) to which Cocrystal is a party or Permit in accordance with by which it is, or its termsassets are, bound;
(lo) any material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mp) imposition of any Encumbrance, other than a Permitted Encumbrance, Encumbrance upon any of the Purchased AssetsCocrystal properties, Capital Stock or assets, tangible or intangible;
(ni) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its employees, officers, directors, independent contractors or consultants, other than as provided for in any Employeeswritten agreements or required by applicable Law, or any (ii) change in the terms of employment with Seller for any Employeeemployee or any termination of any employees for which the aggregate costs and expenses exceed $10,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, independent contractor or consultant;
(or) entry by Seller into adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(ps) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any Employeesof its shareholders, directors, officers and employees or any Affiliate of any of the foregoing;
(qt) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(u) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(rv) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sw) adoptionacquisition by merger or consolidation with, amendmentor by purchase of a substantial portion of the assets or Capital Stock of, modification or termination by Seller any other manner, any business or any Person or any division thereof;
(x) action by Cocrystal to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Cocrystal in respect of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan)post-closing tax period; or
(ty) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet DateDate through the date hereof, and other than in the ordinary course of business consistent with past practice, there has not been been, with respect to the Company (and, in the case of subsections (j) and (k), any Relevant Company), any:
(a) event, occurrence or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of any organizational documents of the Company;
(c) split, combination or reclassification of any of its Equity Interests;
(d) issuance, sale, grant, Encumbrance or other disposition of any of its Equity Interests or an authorization, agreement or other commitment to do so (other than in connection with the exercise of Company Stock Options as required by the terms of such Company Stock Options) or as set forth on Section 3.7(d) of the Disclosure Letter;
(e) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller its Equity Interests or redemption, purchase or acquisition of limited liability company interest its Equity Interests (exclusive of Sellerthe transactions contemplated by this Agreement);
(cf) material change in any method of accounting or accounting practice for of the BusinessCompany, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dg) material change in Seller’s cash management practices and its policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(fh) incurrence, assumption or guarantee by Seller of any indebtedness Indebtedness for borrowed money, money except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(gi) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assets, except for the sale of Inventory in the Ordinary Course of Business and the collection of Accounts Receivable in the Ordinary Course of Business;
(h) or cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of Businessentitlements;
(ij) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reasonCompany IP;
(jk) failure to maintain, or lapse or abandonment of (including by failure to pay the required fees in any jurisdiction) any Registered Company IP, or intentional failure to disclose or maintain any material trade secrets included in the Company IP;
(l) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, Loss (whether or not covered by insurance) to its property;
(km) any capital investment in, or any loan to, any other Person, except for travel and other related expense advances to employees in the ordinary course of business consistent with past practice;
(n) acceleration, termination, material cancellation, amendment, modification to or cancellation renewal of, or waiver of any Material rights under, any material Contract or Permit other than the expiration or termination of (including, but not limited to, any Material Contract Contract) to which the Company is a party or Permit in accordance with its termsby which it is bound;
(lo) any material capital expenditures which would constitute an Assumed Liabilityexpenditures;
(mp) imposition of any Encumbrance, Encumbrance other than a Permitted Encumbrance, Encumbrances upon any of the Purchased Assetsproperties, Equity Interests or assets, tangible or intangible, of the Company;
(nq) other than as provided for in any written agreement or consistent with past practice, (i) grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as required by applicable Law, (ii) action to accelerate the vesting or payment of any Employeescompensation or benefit for any current or former employee, officer, director, independent contractor or consultant, or (iii) actual or announced resignation or termination of any change in officers or key employees of the terms of employment with Seller for any EmployeeCompany;
(or) entry by Seller into hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary and usual course of business;
(s) adoption, modification or termination by Seller of any: (i) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement covering any of the Employeeswith a Union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pt) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any EmployeesRelated Party, except for travel and other related expense advances in the ordinary course of business consistent with past practice;
(qu) entry into a new line of business or abandonment or discontinuance of existing lines of Business;
(v) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it the Company under any similar Law;
(rw) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)aggregate, except for purchases of Inventory inventory or supplies in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(sx) adoption, amendment, modification acquisition by merger or termination by Seller of any bonus, profit sharing, incentive, severanceconsolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other planmanner, Contract any business or commitment any Person or any division thereof;
(y) action by the Company to make, change or rescind any Tax election, amend any income or other material Tax Return, settle or compromise any claim, notice, audit report or assessment in respect of material Taxes, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax (excluding, for the benefit avoidance of doubt, any Employees (commercial agreement the primary purpose of which does not relate to Taxes), knowingly surrender any right to claim a material Tax Refund, or any such action taken with respect consent to any other employee benefit planextension or waiver of the statute of limitations period applicable to any material Tax claim or assessment (excluding, for the avoidance of doubt, any extensions of time to file a Tax Return); or
(tz) any Contract entered into by Seller to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Since the Interim Balance Sheet Date, the Seller has conducted the Business in the ordinary course of business consistent with past practice (in all material respects), and other than events occurring in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) declaration or payment of any dividends or distributions on or in respect of any limited liability company interest of Seller or redemption, purchase or acquisition of limited liability company interest of Seller;
(c) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements, if any;
(dc) material change in Seller’s cash management practices and policies, practices and procedures with respect to collection of Accounts Receivableaccounts receivable, establishment of reserves for uncollectible Accounts Receivableaccounts receivable, accrual of Accounts Receivableaccounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(e) entry by Seller into any Contract that would constitute a Material Contract;
(fd) incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money, money in connection with the Business except unsecured current obligations and Liabilities incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ge) transfer, assignment, sale or other disposition of any of the assets Purchased Assets shown or reflected in the Balance Sheet that would fall within a category of assets included in the Purchased Assetsbalance sheet, except for the sale of Inventory inventory in the Ordinary Course ordinary course of Business and the collection of Accounts Receivable in the Ordinary Course of Businessbusiness;
(hf) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets other than in the Ordinary Course of BusinessAssets;
(i) transfer, assignment or grant by Seller of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses or any claim that Seller has infringed any third party intellectual property rights or claim that any of the Intellectual Property is invalid for any reason;
(jg) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Material Contract or Permit other than the expiration or termination of any Material Contract or Permit in accordance with its terms;
(lh) material capital expenditures which would constitute an Assumed Liabilityfor the Business;
(m1) imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets;
(n) other than as provided for in any written agreement or consistent with past practice, grant by Seller of any bonuses, whether monetary or otherwise, or increase in any general wage wages, salary, severance, pension or salary increases other compensation or benefits in respect of any Employeescurrent or former employees, officers, directors, managers, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (2) change in the terms of employment with Seller for any Employeeemployee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $10,000 annually, or (3) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
(oj) entry by Seller into adoption, modification or termination by Seller of any: (1) employment, severance, retention or other agreement with any employment agreement current or former employee, officer, director, independent contractor or consultant of the Business, (2) Benefit Plan, or (3) collective bargaining or other agreement covering any of the Employeeswith a union, in each case whether written or oral, or modification of the terms of any such existing agreement;
(pk) any loan by Seller to (or forgiveness of any loan to), or entry by Seller into any other transaction with, any current or former directors, officers or Business Employees;
(q) adoption by Seller of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) purchase, lease or other acquisition of the right to own, use or lease any property or assets of Seller in an amount in excess of $25,000, individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the Ordinary Course of Business;
(s) adoption, amendment, modification or termination by Seller of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any Employees (or any such action taken with respect to any other employee benefit plan); or
(tl) any Contract entered into by Seller or Lease to do any of the foregoing, or any action or omission that would result in any of the foregoing.
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