Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been: (a) a Material Adverse Effect on Company; (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security; (c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole; (d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices; (e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business; (i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business; (g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect; (h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or (i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.
Appears in 3 contracts
Sources: Merger Agreement (Vitalstream Holdings Inc), Merger Agreement (Vitalstream Holdings Inc), Agreement and Plan of Merger (Internap Network Services Corp)
Absence of Certain Changes or Events. Except as contemplated by for liabilities incurred in connection with this Agreement, since between December 31, 2006 and the date of this Agreement, the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects business only in the ordinary course of businessbusiness consistent with past practice. Since December 31, 2006 through the date hereof, except as disclosed in Section 2.9 of the Company Balance SheetDisclosure Letter, there has not been:
been any damage, destruction or other casualty loss in excess of $1.0 million individually or in the aggregate with respect to any asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance. Subsequent to December 31, 2006, through the date hereof: (a) a there has not been any Material Adverse Effect on the Company;
; (ib) any splitother than the Cash Distribution to be made pursuant to Section 5.12(a) and the repurchase by the Company of 274,776 of its Ordinary Shares, combination or reclassification of any capital stock, (ii) there has not been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of capital stockits Subsidiaries’ share capital, or any purchase, redemption or other acquisition by the Company of any of the shares of Company’s share capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any optionsoptions (other than Company Share Options in the ordinary course of business consistent with past practice), warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
securities; (c) there has not been any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company or outside of the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company its Subsidiaries, taken as a whole;
’ share capital; (d) there has not been any change by the Company in its accounting methods, principles or practices, except as required by changes in GAAP; (e) except as set forth in Section 2.9 of the Company Disclosure Letter, there has not been any sale, transfer, license or other disposition transfer of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in of the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company its Subsidiaries other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured practice; (f) to the underlying cause Company’s Knowledge, no key employee of the threat and such Contract still remains in full force and effect;
(h) Company or its Subsidiaries as of the date hereof, (i) any increase hereof has communicated to the Company or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directorsits Subsidiaries (orally, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise) an intent to terminate or otherwise significantly decrease his or her contribution to the Company or its Subsidiaries; and (g) except as set forth in Section 2.9 of the Company Disclosure Letter, there has not been any material Tax election made or any material Tax claim, audit or assessment settled, in each case, other than in the ordinary course of business consistent with past practice, or any Tax ruling or arrangement applied for or received by the Company on its own behalf, whether or not in connection with the Merger, or to take the Knowledge of the Company, on behalf of any action described of its shareholders in connection with the Merger, except as explicitly contemplated in this Section 2.7Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Saifun Semiconductors Ltd.), Merger Agreement (Spansion Inc.), Merger Agreement (Saifun Semiconductors Ltd.)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset ------------------------------------ forth in the Recent SEC Documents, since the date of June 30, 2000, the Company Balance Sheet, Company and Company Subsidiaries its subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetand in a manner consistent with past practice and, since such date, there has not been:
(a) a Material Adverse Effect on Company;
: (i) any splitevent that, combination individually or reclassification of any capital stockin the aggregate, has had or could reasonably be expected to have in the future a Company Material Adverse Effect, (ii) any declaration, payment or setting aside or for payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any optionsof the Company by the Company, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s damage or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable loss to any material Tax claimasset or property, whether or not covered by insurance, (iiiv) any material change by the Company in any method of accounting, method of accounting principles or practicepractices, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iiiv) any revaluation by the Company of any of its material assetsassets or liabilities, including, without limitation, writing-writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
, (gvi) any loss of, entry by the Company or receipt any of written notice of its subsidiaries into any intention to cancel commitment or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be transactions material to the Company and its subsidiaries taken as a whole (other than commitments or transactions entered into in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofbusiness), (ivii) any increase in or change establishment of any Company Benefit Plan (as defined in Section 3.12), or any compensation, benefits other increase in the compensation payable or bonus paid or made to become payable to any of their executive officers present or directors, former directors or employees earning more than $100,000 in base salary annuallyofficers, or any increase in employment, consulting or severance agreement or termination payarrangement entered into with any such present or former directors, officers or employees of the Company or any of its subsidiaries, or (viii) any material modification or amendment (including any amendment of the exercise or other price to be paid in connection therewith) or cancellation of any currently effective employmentrights, severancewarrants, termination or indemnification agreement option, calls, commitments or any agreement other agreements of any character to purchase or policy the benefits acquire any shares of which are contingentits capital stock or any securities or rights convertible into, exchangeable for, or evidencing the terms right to subscribe for, any shares of which are materially altered, upon the occurrence of a transaction involving Company capital stock of the nature contemplated hereby Company or (ii) any of its subsidiaries. Since June 30, 2000, neither the Company nor any of its subsidiaries has taken, or failed to take, any action taken to accelerate, amend or change that would have constituted a breach of Section 5.1 hereof had the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7covenants therein applied since that date.
Appears in 3 contracts
Sources: Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementdisclosed in the Company Disclosure Schedule or in the SEC Documents filed and publicly available prior to the Agreement Date (the "FILED SEC DOCUMENTS"), since the date of June 30, 1998 the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects business only in the ordinary course of business. Since business consistent with past practices, and up to the date of the Company Balance SheetAgreement Date, there has not beenbeen with respect to the Company or any of its Subsidiaries any:
(i) Material Adverse Change;
(ii) amendment or change in the Certificate of Incorporation or Bylaws of the Company;
(iii) purchase, license, sale, assignment or other disposition or transfer (or any agreement or other arrangement for the purchase, license, sale, assignment or other disposition or transfer), of any of the assets or properties of the Company or any of its Subsidiaries (including any Intellectual Property Rights), other than (a) non-exclusive licenses of any product or products of the Company or any of its Subsidiaries made in the ordinary course of the Company's business consistent with its past practices, (b) purchases and sales of assets (other than Intellectual Property Rights (as defined in Section 4.1(i)) in the ordinary course of business consistent with its past practices, and (c) purchases and sales of assets (other than Intellectual Property Rights) having a purchase price of less than $100,000 on an individual basis and less than $250,000 in aggregate;
(iv) damage, destruction or loss of any property or asset, whether or not covered by insurance, having (or reasonably likely with the passage of time to have) a Material Adverse Effect on the Company;
(iv) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or the making of any other distribution (whether in cash, stock or property) in respect of, any shares of the shares capital stock of the Company, any split, combination or recapitalization of the capital stock, stock of the Company or any purchasedirect or indirect redemption, redemption purchase or other acquisition of any shares of the shares of capital stock of the Company or any other securities change in any rights, preferences, privileges or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term restrictions of any outstanding securitystock or other security of the Company;
(cvi) any (i) any disposing obligation or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to liability incurred by the Company or outside any of its Subsidiaries to any of its officers or directors except for normal and customary compensation and expense allowances payable to officers in the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole's business consistent with past practices;
(dvii) making by the Company or any saleof its Subsidiaries of any loan, transferadvance or capital contribution to, or other disposition any investment in, any officer or director of the Company or, to the knowledge of the Company, any firm or business enterprise in which any such person had a direct or indirect material interest at the time of such loan, advance, capital contribution or investment;
(viii) material adverse development in any litigation described in any Filed SEC Document or in any litigation or proceeding required to be disclosed in Section 4.1(j) of the Company Disclosure Schedule;
(ix) material increase in the volume or dollar amount of returns (or claims therefor) of any of the Company's products by distributors, customers, value added resellers, original equipment manufacturers or other resellers of such product, or any claims for price adjustments by any such parties with respect to any products of the Company that have been delivered to such party, or any reason to believe that any such increases or claims are likely;
(x) material properties change in the manner in which, or terms on which, the Company or any of its Subsidiaries extends discounts or credits or rights to return products or receive price adjustments to customers or distributors or otherwise deals with its customers or distributors;
(xi) change in accounting methods, principles or practices by the Company (other than as required by GAAP) or any material revaluation of any of the assets (whether realof the Company or any of its Subsidiaries, personal or mixed, tangible any material write-offs of accounts receivable or intangible) except write-downs of the value of capitalized inventory not in the ordinary course of business consistent with past practices;; or
(exii) license, transfer or grant of a right under any Company IP Rights (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment as defined in any Person, including any director, officer or other affiliate of CompanySection 4.1(i), other than advances to employees for travel and other reimbursable expenses non-exclusive licenses granted in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of Company's business consistent with its past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7practices.
Appears in 3 contracts
Sources: Merger Agreement (Symantec Corp), Merger Agreement (Quarterdeck Corp), Merger Agreement (Quarterdeck Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, Sheet there has not been:
: (ai) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of the Company's or any of its subsidiaries' capital stock, (iv) except as set forth in Part 2.6 of the Company Schedules, any granting by the Company or any of its subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by the Company or any extension or waiver of the statutory period its subsidiaries of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
practice, or (h) as of the date hereof, (iv) any increase granting by the Company or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its subsidiaries of any increase in severance or termination pay, pay or (vi) any entry by the Company or any material modification or amendment of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any other agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (vii) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9) other than licenses in the ordinary course of business consistent with past practice, (viii) any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, (ix) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, (x) any revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice; or (iixi) any action taken to accelerate, amend or change changes in the period vesting schedules of vesting or exercisability of options or restricted stock, or reprice outstanding Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Options.
Appears in 3 contracts
Sources: Merger Agreement (Andover Net Inc), Agreement and Plan of Reorganization (Va Linux Systems Inc), Agreement and Plan of Reorganization (Va Linux Systems Inc)
Absence of Certain Changes or Events. Except Since June 30, 1997, except as contemplated by this Agreement, as set forth in Section 3.1(i) of the Disclosure Schedule or disclosed in the SEC Reports filed since that date and up to the date of this Agreement, the Company Balance Sheet, Company and Company Subsidiaries its subsidiaries have conducted their respective businesses only in all the ordinary course and in a manner consistent with past practice and, since such date, there has not been (i) any condition, event or occurrence which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect, (ii) any termination or cancellation of, or any modification to, any agreement, arrangement or understanding which has had or would reasonably be expected to have a Material Adverse Effect, (iii) any material respects change by the Company in its accounting methods, principles or practices, (iv) any revaluation by the Company of any of its material assets other than in the ordinary course of business. Since the date of , consistent with past practice, (v) any entry by the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on or any of its subsidiaries into any commitment or transactions material to the Company;
(i) any split, combination or reclassification of any capital stock, (iivi) any declaration, setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock or property) distributions in respect of, any of the shares of capital stock, Company Common Stock or any purchaseredemption, redemption purchase or other acquisition of any of its securities, (vii) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the shares granting of capital stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan or agreement or arrangement, or any other securities increase in the compensation payable or other partnership interests to become payable to any officers or key employees of the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person subsidiaries other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
practice or as was required under employment, severance or termination agreements in effect as of June 30, 1997, (e) (iviii) any assumptionbonus paid to the employees of the Company or its subsidiaries other than in the ordinary course of business and consistent with past practice, guarantee, endorsement (ix) any sale or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations transfer of any other Person material assets of the Company or its subsidiaries other than those in the ordinary course of Company or Company Subsidiaries, business and consistent with past practice or (iix) any making of any loan, advance or capital contribution to or investment in any Personperson in an aggregate amount in excess of $100,000 by the Company or any subsidiary (excluding any loan, including any director, officer advance or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxescapital contribution to, or investment in, the Company or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, wholly owned subsidiary and except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated drawdowns by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7its credit facility).
Appears in 3 contracts
Sources: Merger Agreement (WTNH Broadcasting Inc), Merger Agreement (Lin Television Corp), Merger Agreement (Lin Television Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, the Company has conducted its business only in the ordinary course of business consistent with past practice and there has not been:
(a) a Material Adverse Effect on Company;
: (i) any split, combination or reclassification of any capital stockMaterial Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case or any of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) its Subsidiaries into any sale, transfer, licensing or other agreement with regard to the disposition of any material properties intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or assets (whether real, personal or mixed, tangible or intangible) except merchant program agreements entered into in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claimpractice, (iiv) any material change by the Company in any method of accountingits accounting methods, method of accounting principles or practicepractices, except for any such change as required by reason of a concurrent change changes in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SECCommission, or (iiivi) any material revaluation by the Company of any material of its assets, including, without limitation, writing-writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
business consistent with past practice, (gvii) any loss ofcommunication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or receipt any of written notice its Subsidiaries of any intention to cancel debts or otherwise terminatewaiver of any claims or rights of material value, (ix) any identified Contract that would be reasonably likelysale, individually transfer or in the aggregate, to be material to Company other than in disposition outside of the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where properties or assets (real, personal or mixed, tangible or intangible) by the Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directorsits Subsidiaries, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(ix) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7section by the Company or any of its Subsidiaries.
Appears in 3 contracts
Sources: Purchase Agreement (Warburg Pincus Private Equity Viii L P), Purchase Agreement (Nuance Communications, Inc.), Purchase Agreement (Nuance Communications, Inc.)
Absence of Certain Changes or Events. Except for liabilities incurred as contemplated by a result of this AgreementAgreement or, with respect to liabilities incurred after the date hereof, as expressly permitted pursuant to Section 4.01(a), since the date of December 31, 2006, the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetconsistent with past practice, (i) there has not been:
(a) a been any Material Adverse Effect on Company;
(i) any splitChange, combination or reclassification of any capital stock, and (ii) from such date until the date hereof there has not been (A) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any capital stock of the Company or any of its Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the shares of capital stockCompany to its stockholders, or (B) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities of the Company or other partnership interests any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination securities, including pursuant to the terms Company’s share repurchase program, (C) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their pre-existing stock option or purchase agreementsrespective capital stock, or (iiiD) (1) any amendment granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or independent contractor, of the Company or any of its Subsidiaries (all such individuals, collectively, the “Company Personnel”) of any material term of any outstanding security;
(c) any (i) any disposing increase in compensation, bonus or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret fringe or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementbenefits, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
practice or as was required under any Company Benefit Agreement or Company Benefit Plan, (e) (i2) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for granting by the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent its Subsidiaries to any Tax claim, any surrendering Company Personnel of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (iix) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay or (y) any right to receive any severance or termination pay, (3) any entry by the Company or any of its Subsidiaries into, or any material modification or amendment of amendments of, (x) any currently effective employment, deferred compensation, consulting, severance, termination change of control, termination, retention, deal bonus or indemnification agreement Contract with any Company Personnel or (y) any agreement or policy Contract with any Company Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the a nature contemplated hereby by this Agreement (all Contracts of the type described by this clause (3), collectively, “Company Benefit Agreements”), (4) the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date hereof, or (ii5) any action taken to acceleratethe adoption, amend amendment or change the period termination of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) Benefit Plan or entry into any agreement, plan or arrangement to do any of the foregoing, (E) any material damage, destruction or loss, whether or not covered by insurance, (F) any change in writing accounting methods, principles or otherwisepractices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP, (G) any material Tax election or any settlement or compromise of any material income Tax liability or (H) any other action taken or committed to take be taken by the Company or any action described in Subsidiary of the Company which, if taken following entry by the Company into this Agreement, would have required the consent of Parent pursuant to Section 2.74.01(a).
Appears in 3 contracts
Sources: Merger Agreement (Cardinal Health Inc), Merger Agreement (Cardinal Health Inc), Merger Agreement (Viasys Healthcare Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheetmost recent SEC Report, Inovio has conducted its business in the ordinary course consistent with past practice and, since such date, there has not been:
(a) a any Material Adverse Effect on CompanyInovio or any of its Subsidiaries;
(b) any resignation by or termination by Inovio or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with Inovio or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of Inovio or any of its Subsidiaries or materially and adversely affecting the business of Inovio or any of its Subsidiaries
(e) any commencement of Legal Proceedings against Inovio or any of its Subsidiaries, and no Person has notified Inovio or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any Inovio officer or director (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the SEC;
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of Inovio's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate
(i) any splitmaterial change by Inovio or any of its Subsidiaries in its accounting methods, combination principles or reclassification practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by Inovio or any of its Subsidiaries of any capital stockof its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(iik) any establishment, termination or amendment of any Inovio Employee Plan;
(l) any material increase of severance or termination pay to any employee of Inovio or any Subsidiary of Inovio;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock stock, equity securities or property) in respect of, any of the shares Inovio Capital Stock or any capital stock of capital stock, or its Subsidiaries;
(n) any purchase, redemption or other acquisition by Inovio or any of its Subsidiaries of any of the shares of capital stock Inovio Capital Stock or any other securities of Inovio or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Inovio Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(co) any issuance or reservation for issuance by Inovio of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) any disposing or impairment the issuance, delivery and/or sale of or permitting shares of Inovio Common Stock pursuant to lapse the exercise of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businessInovio Options, (ii) disposing the granting of or disclosing (except as necessary in the conduct of its business) options to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except purchase Inovio Common Stock in the ordinary course of business consistent with past practicesunder the Inovio Incentive Plans, and (iii) issuances upon exercise of Inovio Warrants or other rights disclosed pursuant to Section 3.2;
(e) (ip) any assumptionsplit, guarantee, endorsement combination or liability otherwise incurred (whether directly, contingently reclassification of any of Inovio Capital Stock or otherwise) for the obligations capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other Person other than those securities in respect of, in lieu of Company or Company in substitution for any Inovio Capital Stock or the capital stock of any of its Subsidiaries, or ;
(iiq) any making amendment of the Certificate of Incorporation or By-Laws of Inovio;
(r) any capital expenditure or execution of any loanlease by Inovio involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by Inovio nor any of its Subsidiaries of any indebtedness or waiver of any rights material to Inovio, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses except in the ordinary course of business;
(it) any material Tax election indebtedness incurred or material change guaranteed by Inovio or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by Inovio or any of its Subsidiaries in any Tax election, any material change in annual Tax accounting period or method excess of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes$500,000, or any consent loans made or agreed to be made by Inovio or any extension or waiver of the statutory period of limitation applicable to any material Tax claimits Subsidiaries, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules other than reasonable travel and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or entertainment expense advances and trade accounts receivable other than in the ordinary course of business;
(gu) any loss of, commencement of Legal Proceedings by Inovio or receipt any of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectits Subsidiaries;
(h) as of the date hereof, (iv) any increase acquisition or change disposition of any equity interest in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansother Person; or
(iw) any agreement, whether in writing agreement by Inovio or otherwise, any of its Subsidiaries to take do any action described in this Section 2.7of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Inovio Biomedical Corp), Agreement and Plan of Merger (Inovio Biomedical Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since From the date of the Company Buyer Balance SheetSheet to and including the date of this Agreement, Company Buyer and Company its Subsidiaries have conducted their respective businesses in all material respects and operations in the ordinary course consistent with past practice and neither Buyer nor any of business. Since the date of the Company Balance Sheet, there has not beenits Subsidiaries has:
(a) a Material Adverse Effect on Companysplit, combined, or reclassified any shares of its capital stock or made any other changes in its equity capital structure;
(ib) any splitpurchased, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend onredeemed, or other distribution (whether in cashotherwise acquired, stock directly or property) in respect ofindirectly, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of its capital stock or any other securities options, rights, or other partnership interests warrants to purchase any such capital stock or any options, warrants, calls securities convertible into or rights to acquire exchangeable for any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitycapital stock;
(c) declared, set aside, or paid any (i) dividend or made any disposing or impairment other distribution in respect of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct shares of its business) capital stock, except for dividends or distributions by any of Buyer's Subsidiaries to any Person other than representatives Buyer or another of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Buyer's Subsidiaries, taken as a whole;
(d) issued any saleshares of its capital stock or granted any options, transferrights, or other disposition warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock, except for issuances of any material properties shares of Buyer Common Stock upon the exercise of options, granted on or assets (whether real, personal or mixed, tangible or intangible) except in before the ordinary course date of business consistent with past practicesthe Buyer Balance Sheet;
(e) (i) purchased any assumptionbusiness, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations purchased any stock of any other Person corporation other than those of Company or Company SubsidiariesBuyer, or (ii) merged or consolidated with any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessperson;
(if) any material Tax election sold, leased, licensed or material change in any Tax election, any material change in annual Tax accounting period encumbered or method of Tax accounting other than as required by applicable laws or regulations, any filing otherwise disposed of any material amended Tax Returnsassets or properties, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than threatened terminations of inventory, in any identified Contract where Company has cured the underlying cause of the threat event, were not material to Buyer and such Contract still remains in full force its Subsidiaries, taken as a whole;
(g) incurred, assumed, or guaranteed any indebtedness for money borrowed other than (A) borrowing incurred for working capital purposes under Buyer's existing revolving credit facility and effect(B) intercompany indebtedness;
(h) changed or modified in any material respect any existing accounting method, principle or practice, other than as of the date hereof, required by GAAP;
(i) except for this Agreement, entered into any commitment to do any of the foregoing;
(j) suffered any business interruption, damage to or destruction of its properties, or other incident, occurrence, or event that has had or would be reasonably likely to have (after giving effect to insurance coverage), individually or in the aggregate, a Buyer Material Adverse Effect;
(k) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or change compensation expense to Buyer, increased in any compensationmanner the compensation or benefits of any employee who is not a director or officer, former employee, or independent contractor providing personal services of Buyer or its Subsidiaries ("Buyer Employee");
(l) increased the compensation or benefits of any officer or bonus paid director of Buyer or made payable to any of their executive officers or directorsits Subsidiaries, or employees earning more other than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansconsistent with past practice; or
(im) entered into or amended any contract, agreement, whether employment, severance or special pay arrangement with any Buyer Employee, except in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Minntech Corp), Merger Agreement (Netsilicon Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since From the date of the Company Buyer Balance SheetSheet to and including the date of this Agreement, Company Buyer and Company its Subsidiaries have conducted their respective businesses in all material respects and operations in the ordinary course consistent with past practice and neither Buyer nor any of business. Since the date of the Company Balance Sheet, there has not beenits Subsidiaries has:
(a) a Material Adverse Effect on Companysplit, combined, or reclassified any shares of its capital stock or made any other changes in its equity capital structure;
(ib) any splitpurchased, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend onredeemed, or other distribution (whether in cashotherwise acquired, stock directly or property) in respect ofindirectly, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of its capital stock or any other securities options, rights, or other partnership interests warrants to purchase any such capital stock or any options, warrants, calls securities convertible into or rights to acquire exchangeable for any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitycapital stock;
(c) declared, set aside, or paid any (i) dividend or made any disposing or impairment other distribution in respect of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct shares of its business) capital stock, except for dividends or distributions by any of Buyer's Subsidiaries to any Person other than representatives Buyer or another of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Buyer's Subsidiaries, taken as a whole;
(d) issued any saleshares of its capital stock or granted any options, transferrights, or other disposition warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock, except for issuances of any material properties shares of Buyer Common Stock upon the exercise of options, granted on or assets (whether real, personal or mixed, tangible or intangible) except in before the ordinary course date of business consistent with past practicesthe Buyer Balance Sheet;
(e) (i) purchased any assumptionbusiness, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations purchased any stock of any other Person corporation other than those of Company or Company SubsidiariesBuyer, or (ii) merged or consolidated with any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessperson;
(if) any material Tax election sold, leased, licensed or material change in any Tax election, any material change in annual Tax accounting period encumbered or method of Tax accounting other than as required by applicable laws or regulations, any filing otherwise disposed of any material amended Tax Returnsassets or properties, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than threatened terminations of inventory, in any identified Contract where Company has cured the underlying cause of the threat event, were not material to Buyer and such Contract still remains in full force its Subsidiaries, taken as a whole;
(g) incurred, assumed, or guaranteed any indebtedness for money borrowed other than (A) borrowing incurred for working capital purposes under Buyer's existing revolving credit facility and effect(B) intercompany indebtedness;
(h) changed or modified in any material respect any existing accounting method, principle or practice, other than as of the date hereof, required by GAAP;
(i) except for this Agreement, entered into any commitment to do any of the foregoing;
(j) suffered any business interruption, damage to or destruction of its properties, or other incident, occurrence, or event that has had or would be reasonably likely to have (after giving effect to insurance coverage), individually or in the aggregate, a Buyer Material Adverse Effect;
(k) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or change compensation expense to Buyer, increased in any compensationmanner the compensation or benefits of any employee who is not a director or officer, former employee, or independent contractor providing personal services of Buyer or its Subsidiaries ("BUYER EMPLOYEE");
(l) increased the compensation or benefits of any officer or bonus paid director of Buyer or made payable to any of their executive officers or directorsits Subsidiaries, or employees earning more other than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansconsistent with past practice; or
(im) entered into or amended any contract, agreement, whether employment, severance or special pay arrangement with any Buyer Employee, except in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Absence of Certain Changes or Events. Except as contemplated by Since January 1, 2011, there has not occurred any fact, circumstance, effect, change, event or development that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. From January 1, 2011 to the date of this Agreement, since the date each of the Company Balance Sheet, Company and the Company Subsidiaries have has conducted their its respective businesses in all material respects business in the ordinary course of business. Since the date of the Company Balance Sheetin all material respects, and during such period there has not beenoccurred:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or propertyproperty or any combination thereof) in respect of any capital stock or voting securities of, or other equity interests in, the Company or the capital stock or voting securities of, or other equity interests in, any of the shares Company Subsidiaries (other than dividends or other distributions by a direct or indirect wholly owned Company Subsidiary to its parent) or any repurchase for value by the Company of any capital stockstock or voting securities of, or other equity interests in, the Company or the capital stock or voting securities of, or other equity interests in, any of the Company Subsidiaries;
(b) any incurrence of material Indebtedness for borrowed money or any guarantee of such Indebtedness for another Person, or any purchaseissue or sale of debt securities, redemption warrants or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to debt security of the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person Subsidiary other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses draws on existing revolving credit facilities in the ordinary course of business;
(i) any material Tax election transfer, lease, license, sale, mortgage, pledge or material change other disposal or encumbrance of any of the Company’s or the Company Subsidiaries’ property or assets outside of the ordinary course of business consistent with past practice with a fair market value in excess of $5,000,000 or (ii) any Tax electionacquisitions of businesses, whether by merger, consolidation, purchase of property or assets or otherwise;
(d) (i) any material change in annual Tax accounting period granting by the Company or method any Company Subsidiary to any current or former director or officer of Tax accounting other than as required by applicable laws the Company or regulations, any filing Company Subsidiary of any material amended Tax Returnsincrease in compensation, bonus or fringe or other benefits or any entering into granting of a closing agreement, settlement any type of compensation or consent benefits to any Tax claimsuch Person not previously receiving or entitled to receive such type of compensation or benefits, except in the ordinary course of business consistent with past practice or as was required under any surrendering Company Benefit Plan in effect as of any right to claim a material refund of TaxesJanuary 1, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim2011, (ii) any material granting by the Company or any Company Subsidiary to any Person of any rights to severance, retention, change in control or termination compensation or benefits or any method of accounting, method of accounting principles or practicematerial increase therein, except for with respect to new hires and promotions in the ordinary course of business and except as was required under any such change required by reason Company Benefit Plan in effect as of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SECJanuary 1, 2011, or (iii) any revaluation entry into or adoption of any material assets, including, without limitation, writing-off notes Company Benefit Plan or accounts receivable other than in the ordinary course any material amendment of businessany such material Company Benefit Plan;
(ge) any loss ofchange in accounting methods, principles or receipt of written notice practices by the Company or any Company Subsidiary, except insofar as may have been required by a change in GAAP;
(f) any transfer, lease, license, sale, mortgage, pledge or other disposal or encumbrance of any intention to cancel of the Company Intellectual Property owned by the Company or otherwise terminateany Company Subsidiary, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Planspractice; or
(ig) any agreementmaterial elections or changes thereto with respect to Taxes by the Company or any Company Subsidiary or any settlement or compromise by the Company or any Company Subsidiary of any material Tax liability or material Tax refund, whether other than in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business.
Appears in 2 contracts
Sources: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Absence of Certain Changes or Events. Except as contemplated and to the extent disclosed or reflected in the Company SEC Reports filed with the SEC prior to the date hereof (the "Filed Company SEC Reports"), neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Except as and to the extent disclosed by the Company in the Filed Company SEC Reports, from June 1, 1999 through the date of this Agreement, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects business in the ordinary and usual course of business. Since the date of the Company Balance Sheet, consistent with past practice and there has not been:
(a) any change, effect, event or occurrence which does or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company;.
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the shares of capital stockstock of the Company, or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityCompany Securities;
(c) any (i) any disposing or impairment of or permitting to lapse amendment of any Company IP Rights that would be material and adverse to term or condition of any outstanding security of the Company or outside the ordinary course any of business, (ii) disposing of or disclosing its Subsidiaries (except as necessary in the conduct for acceleration of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken vesting as a wholeresult of the transactions contemplated by this Agreement);
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement incurrence or liability otherwise incurred (whether directly, contingently assumption by the Company or otherwise) for the obligations any of its Subsidiaries of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees indebtedness for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company borrowed money other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby practice or (ii) any action taken to accelerateguarantee, amend endorsement or change contractual assumption of liability (whether directly, contingently or otherwise) by the period Company or any of vesting or exercisability its Subsidiaries for the obligations of options or restricted stockany other person other than in the ordinary course of business consistent with past practice (other than any wholly owned Subsidiary of the Company, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreementCompany, whether in writing or otherwise, with respect to take any action described in this Section 2.7.its Subsidiaries);
Appears in 2 contracts
Sources: Merger Agreement (Vallen Corp), Merger Agreement (Shield Acquisition Corp/Ga)
Absence of Certain Changes or Events. Except Since October 3, 2004, except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetand in a manner consistent with past practice and, since October 3, 2004, there has not been:
(a) any change in the business, operations, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Company or any of its Subsidiaries having, or reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on CompanyEffect;
(ib) any splitdamage, combination destruction or reclassification loss (whether or not covered by insurance) with respect to any property or asset of the Company or any capital stock, (ii) any declaration, setting aside or payment of any dividend onits Subsidiaries and having, or other distribution (whether reasonably likely to have, individually or in cashthe aggregate, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitya Material Adverse Effect;
(c) any (i) any disposing change by the Company in its financial or impairment of tax accounting methods, principles or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholepractices;
(d) any sale, transfer, or other disposition revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice;
(e) any entry by the Company or any of its Subsidiaries into any commitment or transaction material properties or assets (whether real, personal or mixed, tangible or intangible) to the Company and its Subsidiaries taken as a whole except in the ordinary course of business consistent with past practices;
(e) (if) any assumptiondeclaration, guarantee, endorsement setting aside or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations payment of any other Person other than those dividend or distribution in respect of any capital stock of the Company or Company Subsidiariesany redemption, purchase or other acquisition of any of its securities; or
(iig) any making increase in or establishment of any loanbonus, advance or capital contribution to or investment in any Personinsurance, including any directorseverance, officer or other affiliate of Companydeferred compensation, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
pension, retirement, profit sharing, stock option (i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes the granting of stock options, stock appreciation rights, performance awards, or accounts receivable restricted stock awards), stock purchase or other than employee benefit plan, or any other increase in the ordinary course compensation payable or to become payable to any officers or key employees of business;
(g) the Company or any loss ofof its Subsidiaries, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than except in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7practice.
Appears in 2 contracts
Sources: Merger Agreement (Starcraft Corp /In/), Merger Agreement (Starcraft Corp /In/)
Absence of Certain Changes or Events. Except as contemplated by disclosed in the Company Filed SEC Documents, from December 31, 2001, to the date of this Agreement, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the usual and ordinary course of business. Since the date of the Company Balance Sheetconsistent with past practice, and during such period there has not been:
(a) a Material Adverse Effect on Company;
been (i) any split, combination or reclassification of any capital stockMaterial Adverse Effect relating to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock stock, property or propertyotherwise) in with respect of, to any of the shares Company's or any of its Subsidiaries' capital stockstock or any other equity or voting interests or securities, except for dividends and distributions (including liquidating distributions) by a direct or indirect wholly owned Subsidiary of the Company to its parent, (iii) any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities equity or other partnership voting interests or securities of the Company or any optionsof its Subsidiaries or any rights, warrants, calls or rights options to acquire any such shares or other securities except for repurchases from employees equity or consultants following their termination pursuant to the terms of their pre-existing stock option voting interests or purchase agreementssecurities, or (iiiiv) any amendment split, combination or reclassification of any of the Company's or any of its Subsidiaries' capital stock or other equity or voting interests or securities or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock or other equity or voting interests or securities of the Company or any of its Subsidiaries, (v) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or its Subsidiaries of any material term of any outstanding security;
increase (c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, exceptor, in the case of (i) through (iiiofficers and directors, any increase) in the aggregatecompensation, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, bonus or fringe or other disposition benefits or any granting of any type of material properties compensation or assets benefits (whether realor, personal in the case of officers and directors, any compensation or mixedbenefits) to any current or former director, tangible officer, employee or intangible) consultant not previously receiving or entitled to receive such type of compensation or benefit, except for normal increases in cash compensation in the ordinary course of business consistent with past practices;
practice or as was required under any Company Benefit Agreement or Company Benefit Plan in effect on December 31, 2001, that is filed as an exhibit to the Company Filed SEC Documents or that has been provided to Parent, (e) (iB) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for granting by the obligations of any other Person other than those of Company or Company Subsidiaries, any of its Subsidiaries to any current or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any former director, officer officer, employee or other affiliate consultant of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course Company or any of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering its Subsidiaries of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or receive any increase in severance or termination pay, or (C) any material modification entry by the Company or amendment any of its Subsidiaries into, or any currently effective amendments of, (1) any employment, deferred compensation, consulting, severance, change of control, termination or indemnification agreement or any other agreement with any current or policy former director, officer, employee or consultant of the Company or any of its Subsidiaries or (2) any agreement with any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the a nature contemplated hereby or by this Agreement (iiall such agreements under this clause (C), collectively, "Company Benefit Agreements"), (D) any action taken adoption of, any amendment to accelerateor any termination of any collective bargaining agreement or any employment, amend or change the period of vesting or exercisability of options or bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock appreciation, restricted stock, stock option, phantom stock, performance, retirement, thrift, savings, stock bonus, paid time off, perquisite, fringe benefit, vacation, severance, disability, death benefit, hospitalization, medical, welfare benefit or reprice Company Options granted under other plan, program, policy, arrangement or understanding (whether or not legally binding) maintained, contributed to or required to be maintained or contributed to by the Company Stock Plans or authorization any of cash payments its Subsidiaries or any other person or entity that, together with the Company, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code (each, a "Commonly Controlled Entity"), in exchange for each case providing benefits to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries (collectively, the "Company Benefit Plans"), or (E) any payment of any benefit under, or the grant of any award under, or any amendment to, or termination of, any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of stock options, "phantom" stock, stock appreciation rights, restricted stock, "phantom" stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Options granted under Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable law or any Company Benefit Agreement or Company Benefit Plan in effect on December 31, 2001, that is filed as an exhibit to the Company Stock Plans; or
Filed SEC Documents or that has been provided to Parent, (ivi) any agreementdamage, destruction or loss, whether or not covered by insurance, that individually or in writing the aggregate would reasonably be expected to have a Material Adverse Effect on the Company, (vii) except insofar as may have been required by a change in GAAP or otherwiseapplicable law, any material change in financial or tax accounting methods, principles or practices by the Company or any of its Subsidiaries, (viii) any material tax election with respect to take taxes by the Company or any action described in this Section 2.7of its Subsidiaries or any settlement or compromise of any material tax liability or refund or (ix) any revaluation by the Company or any of its Subsidiaries of any of the material assets of the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Olin Corp), Merger Agreement (Chase Industries Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since During the date of period between the Company Balance Sheet, Company Sheet Date and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetAgreement Date, there has not beenbeen with respect to the Company:
(a) any Material Adverse Effect on the Company or any event or circumstance that, in combination with any other events or circumstances, will or would reasonably be expected to have or result in a Material Adverse Effect on the Company;
(ib) any split, combination amendment or reclassification change to the Company Articles or other equivalent organizational or governing documents of any capital stock, the Company or the US Subsidiary;
(iic) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholesecurities;
(d) any incurrence, creation or assumption of (i) any Encumbrance on any material asset or property of the Company, (ii) any Company Debt or (iii) any Liability as a guarantor or surety with respect to the obligations of others;
(e) any purchase, license, sale, grant, assignment or other disposition or transfer, or any agreement or other arrangement for the purchase, sale, grant, assignment or other disposition or transfer, of any of the Company’s material assets (including Company Intellectual Property (as defined herein) and other intangible assets), properties or assets (whether real, personal goodwill other than the sale or mixed, tangible nonexclusive license of products or intangible) except services to customers in the ordinary course of the Company’s business consistent with its past practices;
(e) (if) any assumptionmaterial change in the pricing of the Company’s products or services or in the manner in which it extends discounts, guaranteecredits or warranties to customers or otherwise deals with its customers;
(g) any damage, endorsement destruction or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations loss of any other Person material property or material asset of the Company, whether or not covered by insurance;
(h) any entry into, amendment, renewal or termination of any Material Contract (other than those an automatic renewal of such Material Contract by its terms), and there has not occurred any default under or breach by the Company or Company Subsidiariesof, or (ii) any making of any loanor, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate the Knowledge of Company, by any other than advances to employees for travel and other reimbursable expenses in the ordinary course of businesscontracting party, any Material Contract;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method deferral of Tax accounting other than as required by applicable laws or regulations, any filing the payment of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable payable other than in the ordinary course of business;
(g) any loss of, consistent with past practices, or receipt in an amount in excess of written notice of US$10,000, or any intention to cancel discount, accommodation or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other concession made other than in the ordinary course of business business, consistent with past practices and other than threatened terminations practices, in order to accelerate or induce the collection of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectreceivable;
(hj) except as required by Israeli GAAP, any material change in accounting methods or practices (including any change in depreciation or amortization policies or rates or revenue recognition policies) by the Company or revaluation by the Company of any of its assets;
(k) any material change with respect to its management, supervisory or other key personnel, any increases in or material modification of the date hereof, (i) any increase compensation or change in any compensation, benefits payable or bonus paid or made to become payable to such individuals, any termination of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyemployment of a material number of employees, or any increase in severance labor dispute or termination pay, or any material modification or amendment claim of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansunfair labor practices; or
(il) there has not occurred any agreementannouncement of, whether in writing any negotiation by or otherwise, any entry into any Contract by the Company or the US Subsidiary to take do any action of the things described in the preceding clauses (a) through (k) (other than negotiations and agreements with Buyer and its representatives regarding the transactions contemplated by this Section 2.7Agreement).
Appears in 2 contracts
Sources: Share Exchange Agreement (Imperva Inc), Share Exchange Agreement (Imperva Inc)
Absence of Certain Changes or Events. Except From December 31, 2007 through the date of this Agreement:
(a) except as contemplated by this Agreement, since the date businesses of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses been conducted, in all material respects respects, in the ordinary course of business. Since business consistent with past practice;
(b) there has not been any event, development or state of circumstances that has had, individually or in the date aggregate, a Company Material Adverse Effect;
(c) except as set forth in Section 2.6 of the Company Balance SheetDisclosure Schedule, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the shares of capital stock, Company Capital Stock or any purchase, redemption or other acquisition of any of repurchase for value by the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse Company of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholeCapital Stock;
(d) there has not been any split, combination or reclassification of any Company Capital Stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock;
(e) except as set forth in Section 2.6 of the Company Disclosure Schedule, there has not been any sale, transferlease (as lessor), assignment, license, failure to maintain or other disposition of any material properties or assets (whether realassets, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(f) there have not been any amendments to or changes in the Company Charter, Company Bylaws or Subsidiary Governance Documents;
(g) there has not been any change in accounting methods, principles or practices by the Company or any Subsidiary materially affecting the consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP;
(h) to the knowledge of the Company, there have not been any claims, charges or grievances filed with any Governmental Entity by any individual, or asserted or threatened by any individual, Governmental Entity or any workers’ representative organization, bargaining unit or union regarding any unfair labor practice, claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any Subsidiary;
(i) except as required pursuant to any existing contract set forth in Section 2.8 of the Company Disclosure Schedule, in the ordinary course of business, or set forth in Section 2.6 of the Company Disclosure Schedule, there has not been any increase in or other change to the salary, bonus or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, any execution of or amendment to any Employee Agreement, or any declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, change in control payment, termination payment, bonus or other additional salary or compensation (including any equity-based compensation) to any such person;
(j) except as set forth in Section 2.6 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has commenced, settled or, to the knowledge of the Company, been named a party to any lawsuit, and neither the Company nor any of its Subsidiaries has received written notice of any threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their businesses, properties or assets;
(k) except as set forth in Section 2.6 of the Company Disclosure Schedule, there has not been any issuance, grant, delivery, sale or purchase, or contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, any shares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(l) except as set forth in Section 2.6 of the Company Disclosure Schedule, there has not been any grant by the Company or any of its Subsidiaries of any severance, change-in-control or termination pay (in cash or otherwise) to any employee, including any officer;
(m) to the knowledge of the Company, there has not been any material Tax election damage to, destruction or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing loss of any material amended Tax Returns, asset of the Company or any entering into of a closing agreement, settlement its Subsidiaries (whether or not covered by insurance);
(n) there has not been any revaluation by the Company or any of or consent to any Tax claim, any surrendering its Subsidiaries of any right to claim a material refund of Taxesits assets, or any consent to any extension or waiver of including the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation writing off of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;; and
(go) there has not been any loss ofauthorization, commitment or receipt of written notice of any intention agreement to cancel or otherwise terminatetake, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (American Capital Strategies LTD), Merger Agreement (Merisel Inc /De/)
Absence of Certain Changes or Events. Except as contemplated by Between December 28, 2015 and the date of this Agreement, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course Ordinary Course of business. Since the date of the Company Balance Sheet, Business and there has not been:
(a) any change, effect, event, occurrence or fact that has had or would reasonably be expected to have a Material Adverse Effect on CompanyEffect;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or making of any other distribution (whether in cash, stock or property) in respect of, any capital stock of the Company;
(c) any split, combination or reclassification of any capital stock of the Company or any issuance or the authorization of any issuance of any other securities in lieu of or in substitution for shares of capital stock, or stock of the Company;
(d) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock of the Company or any other securities or other partnership interests of its Subsidiaries or any options, warrants, calls rights, convertible or exchangeable securities, stock-based performance units or other rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination rights that give the holder thereof any economic interest of a nature accruing to the holders of such shares, other than (w) the acquisition by the Company of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price thereof, (x) the withholding of shares of Company Common Stock to satisfy Tax obligations with respect to awards granted pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businessStock Plans, (iiy) disposing the acquisition by the Company of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementCompany Stock Options, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partyRSUs, exceptCompany DSUs, in the case of (i) through (iii) in the aggregate, as would not be material to Company PSUs and Company SubsidiariesRestricted Stock Awards in connection with the forfeiture of such awards, taken as a whole;
and (dz) any sale, transfer, or other disposition the acquisition by the trustee of any material properties or assets (whether real, personal or mixed, tangible or intangiblethe Company 401(k) except Plan of shares of Company Common Stock in order to satisfy participant investment elections under the ordinary course of business consistent with past practicesCompany 401(k) Plan;
(e) (i) any assumptionchange in accounting methods, guarantee, endorsement principles or liability otherwise incurred (whether directly, contingently or otherwise) for practices by the obligations of any other Person other than those of Company or Company Subsidiariesany of its Subsidiaries materially affecting the consolidated assets, liabilities or results of operations of the Company, except as required (x) by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (iiy) any making of any loan, advance or capital contribution to or investment in any Personby Law, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in Regulation S-X under the ordinary course of businessSecurities Act;
(if) with respect to the Company or any of its Subsidiaries, any material election relating to Taxes (including any “check-the-box” election pursuant to Treasury Regulations Section 301.7701-3), any material amendment with respect to any material Tax election or material change in any Tax electionReturn, any material change in annual Tax accounting period settlement or method of Tax accounting other than as required by applicable laws or regulations, any filing compromise of any material amended Tax Returnsliability for an amount that exceeds the amount disclosed, reflected or reserved against in the financial statements contained in the Filed SEC Documents, any entering into request for any rulings from or the execution of any closing agreement with any Governmental Authority (except in connection with a settlement of a closing agreementTax liability for an amount that does not exceed the amount disclosed, settlement of reflected or consent to any Tax claimreserved against in the financial statements contained in the Filed SEC Documents), any surrendering surrender of any right to claim a material refund of TaxesTax refund, any change to an annual accounting period for Tax purposes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assetsaccounting method for Tax purposes, includingexcept, without limitationin each case, writing-off notes or accounts receivable other than for actions taken in the ordinary course Ordinary Course of businessBusiness;
(g) any loss of, or receipt of written notice the commencement of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course new line of business consistent with past practices and other than threatened terminations or the opening by the Company or any of its Subsidiaries of any identified Contract where restaurants or the Company has cured the underlying cause or any of the threat and such Contract still remains its Subsidiaries otherwise engaging in full force and effect;any other operations, in each case, in any country in which they did not, as of December 28, 2015, have an owned or franchised restaurant or conduct other operations; or
(h) any change (other than an immaterial change) to the terms of the Company’s or any of its Subsidiaries’ policies or procedures with respect to its relationships with any of its Franchisees, including any system-wide or regional mandates relating to equipment or software. In addition, between September 1, 2016 and the date of this Agreement, except as required by applicable Law or the terms of any Company Benefit Plan or Company Benefit Agreement or other written agreement, in each case, set forth in the Company Disclosure Letter and in effect as of September 1, 2016, there has not been (A) any granting to any director or member of the date hereofCompany Executive Team of any increase in compensation (except in the Ordinary Course of Business), (iB) any increase or change in any compensation, benefits or bonus paid or made payable granting to any director or member of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or the Company Executive Team of any increase in severance or termination pay, or any material modification or amendment pay (except to the extent of any currently effective increase in severance or termination pay as a result of the any increase in compensation in the Ordinary Course of Business), (C) any entry by the Company or its Subsidiaries into any employment, consulting, severance, retention or termination or indemnification agreement or arrangement with any director, officer or other employee, (D) any establishing, adopting, entry into or amending in any material respect any collective bargaining agreement or policy the benefits of which are contingentCompany Benefit Plan or Company Benefit Agreement, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (iiE) any action taken acting to accelerate, amend accelerate any rights or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted benefits under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Benefit Plan or Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Benefit Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Popeyes Louisiana Kitchen, Inc.), Merger Agreement (Restaurant Brands International Inc.)
Absence of Certain Changes or Events. Except as contemplated by Since the Most Recent Balance Sheet Date until the date of this Agreement, since the date of the each Group Company Balance Sheet, Company and Company Subsidiaries have has conducted their respective its businesses in all material respects in the ordinary course of businessbusiness consistent with past practice. Since Except as otherwise contemplated hereby, since the Most Recent Balance Sheet Date until the date of the Company Balance Sheet, this Agreement there has not beenbeen or occurred:
(a) a Material Adverse Effect on CompanyEffect;
(ib) any splitmaking, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any equity securities of the shares of capital stockany Group Company, or any purchase, redemption or other acquisition by any Group Company of its equity securities (other than in respect of Tax distributions);
(c) any split, combination, reclassification or recapitalization of equity securities of any Group Company;
(d) any grant, issuance, sale, transfer or other disposition of any of the shares equity securities of capital stock any Group Company, or any other securities or other partnership interests or grant of any options, warrants, calls or other rights to acquire any such shares purchase or other securities except for repurchases from employees obtain (including upon conversion, exchange or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iiiexercise) any amendment of the equity securities of any material term of any outstanding securityGroup Company;
(ce) any change by any Group Company in its accounting methods, principles or practices (i) including any disposing change in depreciation or impairment of amortization policies or permitting to lapse of any Company IP Rights that would be material and adverse to Company rates or outside the ordinary course of businessrevenue recognition policies), (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret required by either Law or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or GAAP;
(iiif) any material change to Company’s revaluation by any Group Company of its assets, excluding writing-off or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partydiscounting of notes, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, accounts receivable or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practicespractice;
(eg) any change by any Group Company in its Tax elections or accounting methods, any Group Company entering into any closing agreement, settlement or compromise of any claim or assessment, in each case in respect of Taxes, or any Group Company consenting to any extension or waiver of any limitation period with respect to any claim or assessment for Taxes or any Group Company surrendering any right to claim a Tax refund;
(h) any amendment of any Group Company’s Organizational Documents;
(i) any assumptiondamage, guarantee, endorsement destruction or liability otherwise incurred loss (whether directly, contingently or otherwisenot covered by insurance) for to the obligations property of the Group Companies in excess of $100,000 individually or in the aggregate;
(j) any other Person other than those of Company or Company Subsidiariesinvestment in, or (ii) any making of any loan, advance or capital contribution to, any other Person (other than the advancement of business costs and expenses to employees or investment independent contractors in the ordinary course of business);
(k) any acquisition by merger or consolidation with, or purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person;
(l) any single capital expenditure or entry into any Contract or commitment therefor in excess of $100,000;
(m) entry into any Contract for the purchase or lease (as lessor or lessee) of real property;
(n) any sale, including any directorlease (as lessor), officer transfer or other affiliate disposition of, license, mortgage or pledge, or imposition of Companyany Lien (other than Permitted Liens) on, any of its assets valued in excess of $100,000, in whole or in part;
(o) any creation, incurrence, assumption or agreement to create, incur, or assume or guarantee, any indebtedness for borrowed money other than money borrowed or advanced in the ordinary course of business or under existing lines of credit;
(p) any creation of assumption of any Lien (other than Permitted Liens) on any asset of the Group Companies;
(q) any material increase in, entry into, termination or adoption of any Benefit Plan, other than advances to as required by any such existing plan, by any employment agreement or by Law;
(r) any material change in the compensation of employees for travel and of any Group Company other reimbursable expenses than as required by employment agreements or by any Law;
(s) any delay in paying any payables or other liabilities of any Group Company when due or deferred expenses, in each case, outside the ordinary course of business;
(it) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing settlement of any material amended Tax ReturnsActions which involve payments of consideration in excess of $100,000; or
(u) any acceleration, any entering into of a closing agreement, settlement of write off or consent to any Tax claim, any surrendering discount of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation accounts receivable of any material assets, including, without limitation, writing-off notes or accounts receivable Group Company other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.
Appears in 2 contracts
Sources: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since From the date of the Company Buyer Balance SheetSheet to and including the date of this Agreement, Company Buyer and Company its Subsidiaries have conducted their respective businesses in all material respects and operations in the ordinary course consistent with past practice and neither Buyer nor any of business. Since the date of the Company Balance Sheet, there has not beenits Subsidiaries has:
(a) a Material Adverse Effect on Companysplit, combined, or reclassified any shares of its capital stock or made any other changes in its equity capital structure;
(ib) any splitpurchased, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend onredeemed, or other distribution (whether in cashotherwise acquired, stock directly or property) in respect ofindirectly, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of its capital stock or any other securities options, rights, or other partnership interests warrants to purchase any such capital stock or any options, warrants, calls securities convertible into or rights to acquire exchangeable for any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitycapital stock;
(c) declared, set aside, or paid any (i) dividend or made any disposing or impairment other distribution in respect of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct shares of its business) capital stock, except for dividends or distributions by any of Buyer’s Subsidiaries to any Person other than representatives Buyer or another of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to CompanyBuyer’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) issued any saleshares of its capital stock or granted any options, transferrights, or other disposition warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock, except for issuances of any material properties shares of Buyer Common Stock upon the exercise of options, granted on or assets (whether real, personal or mixed, tangible or intangible) except in before the ordinary course date of business consistent with past practicesthe Buyer Balance Sheet;
(e) (i) purchased any assumptionbusiness, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations purchased any stock of any other Person corporation other than those of Company or Company SubsidiariesBuyer, or (ii) merged or consolidated with any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessperson;
(if) any material Tax election sold, leased, licensed or material change in any Tax election, any material change in annual Tax accounting period encumbered or method of Tax accounting other than as required by applicable laws or regulations, any filing otherwise disposed of any material amended Tax Returnsassets or properties, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than threatened terminations of inventory, in any identified Contract where Company has cured the underlying cause of the threat event, were not material to Buyer and such Contract still remains in full force and effectits Subsidiaries, taken as a whole;
(g) incurred, assumed, or guaranteed any indebtedness for money borrowed other than intercompany indebtedness;
(h) changed or modified in any material respect any existing accounting method, principle or practice, other than as of the date hereof, required by GAAP;
(i) any except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or change compensation expense to Buyer, increased in any compensationmanner the compensation or benefits of any employee (who is not a director or officer), former employee, or independent contractor providing personal services of Buyer or its Subsidiaries (“Buyer Employee”);
(j) increased the compensation or benefits of any officer or bonus paid director of Buyer or made payable to any of their executive officers its Subsidiaries, other than consistent with past practice;
(k) entered into or directorsamended any contract, or employees earning more than $100,000 in base salary annuallyagreement, or any increase in employment, severance or termination payspecial pay arrangement with any Buyer Employee, or except in the ordinary course of business consistent with past practice;
(l) except for this Agreement, entered into any material modification or amendment of commitment to do any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansforegoing; or
(im) suffered any agreementbusiness interruption, whether damage to or destruction of its properties, or other incident, occurrence, or event that has had or would be reasonably likely to have (after giving effect to any insurance coverage reasonably likely to be received), individually or in writing or otherwisethe aggregate, to take any action described in this Section 2.7a Buyer Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Optika Inc), Merger Agreement (Stellent Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth on Schedule 3.11, since the date of December 31, 2023, the Company Balance Sheet, Company and Company Subsidiaries have has conducted their respective businesses in all material respects its business in the ordinary course of business. Since the date of the Company Balance Sheet, business substantially consistent with past practice and there has not been, with respect to the Company, any:
(a) change in the assets, liabilities, business, prospects, results of operations or financial condition of the Company or any Seller that has or could be reasonably expected to have a Material Adverse Effect on CompanyEffect;
(ib) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock cash or propertyin kind) in respect of, any of by the shares of capital stockCompany to its owner(s), or any purchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or any Seller of any equity interests of the shares of capital stock or any other securities or other partnership interests Company, or any options, warrants, calls rights or rights agreements to purchase or acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to equity interests of the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityCompany;
(c) increase in amounts payable by the Company to or for the benefit of, or committed to be paid by the Company to or for the benefit of, any (i) Seller or any disposing officer, director or impairment other consultant, agent or employee of the Company whose total annual compensation exceeds $125,000, or permitting to lapse any relatives of such Person, or any increase in any benefits granted under any bonus, stock option, profit-sharing, pension, retirement, severance, deferred compensation, insurance, or other direct or indirect benefit plan, payment or arrangement made to, with or for the benefit of any Company IP Rights that would be material and adverse to Company current or outside former employee of the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, transaction entered into or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated carried out by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable Company other than in the ordinary course of business;
(ge) borrowing or agreement to borrow funds by the Company; any loss of, or receipt of written notice incurring by the Company of any intention to cancel or otherwise terminateother Liability, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than except Liabilities incurred in the ordinary course of business consistent with past practices and other than threatened terminations business, or any endorsement, assumption or guarantee of payment or performance of any identified Contract where Company has cured loan or obligation of any other Person by the underlying cause Company;
(f) material change in the Company’s method of doing business or any change in the Company’s accounting principles or practices or the Company’s method of application of such principles or practices;
(▇) ▇▇▇▇ imposed or agreed to be imposed on or with respect to the property or assets of the threat and such Contract still remains in full force and effectCompany;
(h) as sale, lease or other disposition of, or any agreement to sell, lease or otherwise dispose of any of the date hereof, properties or assets of the Company;
(i) any increase or change in any compensation, benefits or bonus paid or made payable to any purchase of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement to purchase assets for an amount in excess of $25,000 for any one or policy more purchases made by the benefits Company or any lease or any agreement to lease, as lessee, any capital assets with payments over the term thereof to be made by the Company exceeding an aggregate amount of which are contingent$25,000;
(j) loan, advance or capital contribution made by the Company to any Person;
(k) modification, waiver, change, amendment, release, rescission or termination of, or accord and satisfaction with respect to, any term, condition or provision of any Contract to which the Company is a party, other than any satisfaction by performance in accordance with the terms thereof in the ordinary course of which are materially alteredbusiness;
(l) labor dispute or disturbance adversely affecting the business, upon operations or condition (financial or otherwise) of the occurrence Company, including, without limitation, the filing of any petition or charge of unfair or discriminatory labor practice with any governmental or regulatory authority, efforts to effect a union representation election, actual or threatened employee strike, work stoppage or slowdown;
(m) filing, change, or revocation of any Tax election, change of any annual accounting period in respect of Taxes, adoption or change of any accounting method in respect of Taxes, entrance into any closing agreement (or similar agreement with a Governmental Authority) relating to any Tax, or settlement or compromise of any Tax claim, audit, procedure, assessment or Tax liability, filing of any Tax Return in a manner inconsistent with past practice or inconsistent with applicable Law, filing of any amended Tax Return, entry into any Tax allocation, sharing or indemnity agreement, surrender of a transaction involving Company right to claim a Tax refund, consent to an extension or waiver of the nature contemplated hereby statute of limitations period applicable to any Tax claim or assessment, making of any voluntary Tax disclosure or Tax amnesty filing or any entrance into any closing agreement with respect to Taxes, other similar action or omission relating to the filing of any Tax Return or the payment of any Tax, if any such action or omission would have the effect of increasing the Tax liability of any of the Company or for which Buyer or any of its Affiliates (including the Company after the Closing) would be responsible or would otherwise acquire pursuant to this Agreement, or deferring the withholding, deposit or payment of any payroll Tax obligations pursuant to any COVID-19 Measures; or
(n) Contract entered into by the Company, other than any Contract that (i) is set forth on Section 3.7(a) of the Seller Disclosure Schedule or (ii) any action taken has been terminated prior to accelerate, amend or change the period Signing Date with no further Liability of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans thereunder or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7relating thereto.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Lightpath Technologies Inc), Membership Interest Purchase Agreement (Lightpath Technologies Inc)
Absence of Certain Changes or Events. Except as contemplated by From the date of the Company Balance Sheet to and including the date of this Agreement, since the Company and its Subsidiaries have conducted their respective businesses and operations in the ordinary course consistent with past practice and neither the Company nor any of its Subsidiaries has:
(a) split, combined, or reclassified any shares of its capital stock or made any other changes in its equity capital structure;
(b) purchased, redeemed, or otherwise acquired, directly or indirectly, any shares of its capital stock or any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock;
(c) declared, set aside, or paid any dividend or made any other distribution in respect of shares of its capital stock, except for dividends or distributions by any of the Company's Subsidiaries to the Company or another of the Company's Subsidiaries;
(d) issued any shares of its capital stock or granted any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock, except for issuances of shares of Company Common Stock upon the exercise of options granted on or before the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) purchased any assumptionbusiness, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations purchased any stock of any other Person corporation other than those of Company or Company Subsidiariesthe Company, or (ii) merged or consolidated with any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessperson;
(if) any material Tax election sold, leased, licensed or material change in any Tax election, any material change in annual Tax accounting period encumbered or method of Tax accounting other than as required by applicable laws or regulations, any filing otherwise disposed of any material amended Tax Returnsassets or properties, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than threatened terminations of inventory, in any identified Contract where event, were not material to the Company has cured and its Subsidiaries, taken as a whole;
(g) incurred, assumed, or guaranteed any indebtedness for money borrowed other than (i) borrowing incurred for working capital purposes under the underlying cause of the threat Company's existing revolving credit facility and such Contract still remains in full force and effect(ii) intercompany indebtedness;
(h) changed or modified in any material respect any existing accounting method, principle or practice, other than as of the date hereof, required by GAAP;
(i) except for this Agreement, entered into any commitment to do any of the foregoing;
(j) suffered any business interruption, damage to or destruction of its properties, or other incident, occurrence, or event that has had or would be reasonably likely to have (after giving effect to insurance coverage), individually or in the aggregate, a Company Material Adverse Effect;
(k) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or change compensation expense to the Company, increased in any compensationmanner the compensation or benefits of any employee who is not a director or officer, former employee, or independent contractor providing personal services of the Company or its Subsidiaries ("COMPANY EMPLOYEE");
(l) increased the compensation or benefits of any officer or bonus paid director of the Company or made payable to any of their executive officers or directorsits Subsidiaries, or employees earning more other than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansconsistent with past practice; or
(im) entered into or amended any contract, agreement, whether employment, severance or special pay arrangement with any Company Employee, except in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, Sheet Date ------------------------------------ there has not beenoccurred:
(a) any change in the condition (financial or otherwise), properties, assets, liabilities, businesses, operations or results of operations of the Company, taken separately or as a whole, that could reasonably constitute a Material Adverse Effect on Effect;
(b) any amendments or changes in the certificate of incorporation or bylaws of the Company;
(ic) any splitdamage, combination destruction or reclassification loss, whether covered by insurance or not, that could reasonably constitute a Material Adverse Effect;
(d) any redemption, repurchase or other acquisition of any capital stockshares of the Common Stock by the Company, (ii) or any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityCommon Stock;
(ce) any (i) material increase in or modification of the compensation or benefits payable or to become payable by the Company to any disposing of its directors or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside employees, except in the ordinary course of business, business consistent with past practice;
(ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iiif) any material change to Company’s increase in or modification of any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partybonus, exceptpension, insurance or other benefit (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of its employees or consultants, other than in the case ordinary course of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholebusiness consistent with past practice;
(dg) any sale, transfer, acquisition or other disposition sale of any a material properties amount of property or assets (whether realof the Company, personal or mixed, tangible or intangible) except other than in the ordinary course of business consistent with past practices;
(eh) any alteration in any term of any outstanding security of the Company;
(i) any assumption(A) incurrence, guarantee, endorsement assumption or liability otherwise incurred (whether directly, contingently or otherwise) for guarantee by the obligations Company of any debt for borrowed money; (B) issuance or sale of any securities convertible into or exchangeable for debt securities of the Company; or (C) issuance or sale of options or other Person other than those rights to acquire from the Company, directly or indirectly, debt securities of the Company or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by the Company Subsidiariesof any mortgage, pledge, security interest or lien or other encumbrance on any asset;
(iik) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, person other than (i) travel loans or advances to employees for travel and other reimbursable expenses made in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver business of the statutory period of limitation applicable to any material Tax claimCompany, (ii) other loans and advances in an aggregate amount which does not exceed $25,000 outstanding at any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules time and regulations promulgated by the SEC, or (iii) purchases on the open market of liquid, publicly traded securities;
(l) any revaluation entering into, amendment of, relinquishment, termination or non-renewal by the Company of any material assetscontract, includinglease transaction, without limitation, writing-off notes commitment or accounts receivable other right or obligation other than in the ordinary course of business, except as expressly contemplated in this Agreement or any other agreement to be executed in connection herewith;
(gm) any loss oftransfer or grant of a right under the IP Rights (as defined in Section 2.14), or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than those transferred or granted in the ordinary ------------ course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectbusiness;
(hn) as any labor dispute or charge of unfair labor practice (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any campaign being conducted to solicit authorization from employees to be represented by the labor union; or
(o) any agreement or arrangement made by the Company to take any action which, if taken prior to the date hereof, (i) would have made any increase representation or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described warranty set forth in this Section 2.7Agreement untrue or incorrect unless otherwise disclosed.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Saunders & Parker Inc), Stock Purchase Agreement (Parker Terry S)
Absence of Certain Changes or Events. Except as contemplated by this AgreementFrom March 31, since 2006 to the date hereof, except as set forth in Section 3.7 of the Company Balance SheetDisclosure Schedule, the Company and Company its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, and consistent with past practice and there has not been:
(a) any material loss, damage or destruction to, or any material interruption in the use of, any of the assets of the Company or any of its Subsidiaries (whether or not covered by insurance) that constitutes a Company Material Adverse Effect on CompanyEffect;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting accrual, set aside or payment of any dividend on, or any other distribution (whether in cash, stock or property) in respect of, of any of the shares of capital stockstock of the Company or any of its Subsidiaries, other than payment of dividends owing to the holders of the Company Preferred Stock in accordance with its terms, or (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or other securities;
(c) any other securities sale, issuance or grant, or authorization of the issuance of, (i) any capital stock or other partnership interests security of the Company or any optionsof its Subsidiaries (except for Company Common Stock issued upon the valid exercise of options granted under any of the Stock Plans), warrants(ii) any option, calls warrant or rights right to acquire any such shares capital stock or any other securities security of the Company or any of its Subsidiaries (except for repurchases from employees Options or consultants following their termination pursuant to the terms of their pre-existing restricted stock option or purchase agreementsunits described in Section 3.2), or (iii) any amendment instrument convertible into or exchangeable for any capital stock or other security of the Company or any material term of any outstanding securityits Subsidiaries;
(cd) any amendment or waiver of any of the rights of the Company or any of its Subsidiaries under, or acceleration of vesting under, (i) any disposing or impairment of or permitting to lapse provision of any Company IP Rights that would be material and adverse to Company or outside of the ordinary course of businessStock Plans, (ii) disposing any provision of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent contract evidencing any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementoutstanding Option, or (iii) any material change restricted stock purchase agreement;
(e) any amendment to Company’s any organizational document of any of the Company or any of its Subsidiaries, any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction involving the Company Subsidiary’s rights or any of its Subsidiaries;
(f) any creation of any Subsidiary of the Company or any of its Subsidiaries or acquisition by the Company or any of its Subsidiaries of any equity interest or other interest in any other Person;
(g) any capital expenditure by the Company or any of its Subsidiaries which, when added to use Intellectual Property Rights licensed from a third partyall other capital expenditures made on behalf of the Company or any of its Subsidiaries since the date of the Interim Financial Statements, except, exceeds $100,000 in the case aggregate;
(h) any action by the Company or any of its Subsidiaries to (i) through enter into, or suffer any of the assets owned or used by it to become bound by, any Company Material Contract (as defined in Section 3.17), or (ii) amend or terminate, or waive any material right or remedy under, any Company Material Contract;
(i) any (i) acquisition, lease or license by the Company or any of its Subsidiaries of any material right or other material asset from any other Person, (ii) sale or other disposal or lease or license by the Company or any of its Subsidiaries of any material right or other material asset to any other Person, or (iii) in waiver or relinquishment by the aggregateCompany or any of its Subsidiaries of any right, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, except for rights or other disposition assets acquired, leased, licensed or disposed of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business and consistent with past practices;
(ej) any write-off as uncollectible, or establishment of any extraordinary reserve with respect to, any material account receivable or other material debt owing to the Company or any of its Subsidiaries;
(k) any pledge of any assets of or sufferance of any of the assets of the Company or any of its Subsidiaries to become subject to any Lien, except for Permitted Liens and pledges of immaterial assets made in the ordinary course of business and consistent with past practices;
(l) any (i) loan by the Company or any assumption, guarantee, endorsement or liability otherwise incurred of its Subsidiaries to any Person (whether directly, contingently or otherwise) for the obligations of any other Person other than those of loans among the Company or Company and its Subsidiaries), or (ii) new incurrence or new guarantee by the Company or any making of its Subsidiaries of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Companyindebtedness for borrowed money, other than advances to employees for travel and other reimbursable expenses draws under the revolver under the Credit Facility in the ordinary course of business;
(m) any (i) adoption, establishment, entry into or amendment by the Company or any of its Subsidiaries of any Employee Plan or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of the directors, officers or employees of the Company or any of its Subsidiaries;
(n) any change of the methods of accounting or accounting practices of the Company or any of its Subsidiaries in any material respect;
(o) any material Tax election by the Company or material change in any Tax election, of its Subsidiaries;
(p) any material change in annual Tax accounting period commencement or method of Tax accounting other than as required by applicable laws or regulations, any filing settlement of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, legal proceeding by the Company or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansits Subsidiaries; or
(iq) any agreement, whether in writing agreement or otherwise, commitment to take any action described of the actions referred to in this Section 2.7clauses (a) through (q) above.
Appears in 2 contracts
Sources: Merger Agreement (Rent Way Inc), Merger Agreement (Rent a Center Inc De)
Absence of Certain Changes or Events. Except as contemplated by this Agreement(a) Since December 31, since 2020 (the date of the “Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetSheet Date”), there has not been:
been (ai) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows, or properties of Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on with respect to Company;
(i) any split, combination and to the Knowledge of the Company, no fact or reclassification of any capital stockcondition exists which is reasonably likely to cause a Material Adverse Effect with respect to the Company in the future, (ii) any change by Company or any of its Subsidiaries in its accounting methods, principles or practices, other than changes required by applicable Law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of Company or any of the shares of capital stock, its Subsidiaries or any purchaseredemption, redemption purchase or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any optionsits securities, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices practice, (iv) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (v) any material change in the credit policies or procedures of Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive, (vi) other than loans and loan commitments, investment securities, and other than threatened terminations real estate owned in the ordinary course of business and consistent with past practice, any material acquisition or disposition of any identified Contract where Company has cured assets or properties, or any contract for any acquisition or disposition entered into, or (vii) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the underlying cause ordinary course of the threat and such Contract still remains in full force and effect;business consistent with past practice.
(hb) Except as of otherwise expressly permitted or expressly contemplated by this Agreement, and except as set forth in Company Disclosure Schedule 3.10(b),since the date hereofCompany Balance Sheet Date, the Company and its Subsidiaries have carried on its business in the ordinary course consistent with past practice and there has not been: (i) any entry by Company or any of its Subsidiaries into any contract or commitment of more than (A) $150,000 in the aggregate or (B) $150,000 per annum with a term of more than one year, other than borrowings, loans and loan commitments in the ordinary course of business, or (ii) any increase in or change in establishment of any bonus, insurance, severance, deferred compensation, benefits pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or bonus paid restricted stock awards), stock purchase or made other employee benefit plan, or any other increase in the compensation payable or to become payable to any of their executive directors, officers or directors, employees of Company or employees earning more than $100,000 in base salary annuallyany of its Subsidiaries, or any increase in grant of severance or termination pay, or any material modification contract or amendment arrangement entered into to make or grant any severance or termination pay, any payment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingentbonus, or the terms taking of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken not in the ordinary course of business with respect to acceleratethe compensation or employment of directors, amend or change the period of vesting or exercisability of options or restricted stockofficers, or reprice employees of Company Options granted under the Company Stock Plans or authorization any of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Independent Bank Corp), Merger Agreement (Independent Bank Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been, accrued or arisen:
(a) a any Material Adverse Effect on the Company;
(ib) any splitacquisition by the Company or any Subsidiary of, combination or reclassification agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of any capital stock, the Company;
(iic) any declaration, setting aside or payment of any dividend onon (other than as described in Section 5.3), or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any salesplit, transfer, combination or other disposition reclassification of any material properties of the Company’s or assets any of its Subsidiaries’ capital stock;
(e) any granting by the Company or any of its Subsidiaries, whether realorally or in writing, personal or mixed, tangible or intangible) except of any increase in compensation (other than annual and merit-based salary increases made in the ordinary course of business consistent with past practices;
(epractice and not exceeding 7.5% in the aggregate for any individual) (i) or fringe benefits or any assumption, guarantee, endorsement payment by the Company or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations any of its Subsidiaries of any other Person bonus (other than those quarterly employee and management bonuses pursuant to the Quarterly Bonus Award Plan set forth on Section of 3.16(b) the Company Disclosure Letter) or any change by the Company or Company Subsidiariesany of its Subsidiaries of severance, termination or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel bonus policies and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, practices or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated entry by the SEC, Company or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events);
(iif) any action taken to accelerate, amend or material change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under by the Company Stock Plans in its accounting methods, principles or authorization of cash payments practices, except as required by concurrent changes in exchange for GAAP;
(g) any Company Options granted under debt, capital lease or other debt or equity financing transaction by the Company Stock Plans; oror any of its Subsidiaries or entry into any agreement by the Company or any of its Subsidiaries in connection with any such transaction, except for capital lease and receivables financings entered into in the ordinary course of business consistent with past practice which are not individually or in the aggregate material to the Company and its Subsidiaries taken as a whole;
(h) any grants of any material refunds, credits, rebates or other allowances by the Company to any end user, customer, reseller or distributor, in each case, other than in the ordinary course of business consistent with past practice;
(i) any material change in the level of product returns or factors influencing accounts receivable or warranty reserves (including any material change in warranties provided by the Company) experienced by the Company or any of its Subsidiaries;
(j) any material restructuring activities by the Company or any of its Subsidiaries, including any material reductions in force, lease terminations, or similar actions;
(k) any sale, lease, license, encumbrance or other disposition of any properties or assets except the sale, lease, license or disposition of property or assets which are not material, individually or in the aggregate, to the business of the Company or the licenses of current Company Products, in each case, in the ordinary course of business and in a manner consistent with past practice;
(l) any loan or extension of credit by the Company or any of its Subsidiaries to any Person other than in the ordinary course of business and in a manner consistent with past practice;
(m) any adoption of or change in any election in respect of Taxes, any adoption, change in or application to change any accounting method in respect of Taxes, any agreement or settlement of any audit, claim or assessment in respect of Taxes, any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, any entry into any closing agreement, whether any filing of any amended Return, or any failure to file any Return when due (or, alternatively, failure to file for available extensions), failure to cause any Return when filed to be complete and accurate or failure to pay any Taxes when due; or
(n) any material revaluation, or any indication that such a revaluation was merited under GAAP, by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory, spares, long term or short-term investments, fixed assets, goodwill, intangible assets, deferred tax assets, or writing off notes or accounts receivable other than in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since From the date of the most recent audited financial statements included in the Company Balance SheetSEC Documents to the date of this Agreement, the Company and Company Subsidiaries have has conducted their respective businesses in all material respects its business only in the ordinary course of business. Since the date of the Company Balance Sheetcourse, and during such period there has not been:
(a) any event, change, effect or development that, individually or in the aggregate, has had or could reasonably be expected to have a Company Material Adverse Effect on CompanyEffect;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the shares of capital stock, Company Capital Stock or any purchase, redemption or other acquisition repurchase for value by the Company of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityCompany Capital Stock;
(c) any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company Capital Stock or outside any issuance or the ordinary course authorization of businessany issuance of any other securities in respect of, (ii) disposing in lieu of or disclosing (except as necessary in the conduct substitution for shares of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholeCapital Stock;
(d) (i) any sale, transfer, granting by the Company or other disposition any Company Subsidiary to any director or executive officer of the Company or any Company Subsidiary of any material properties or assets (whether realincrease in compensation, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement prior practice or liability otherwise incurred (whether directly, contingently as was required under employment agreements included in or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses described in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) SEC Documents filed as of the date hereof, (iii) any increase granting by the Company or change in any compensation, benefits or bonus paid or made payable Company Subsidiary to any such director or executive officer of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, except as was required under any employment, severance or termination agreements included in or described in the Company SEC Documents filed as of the date hereof, or (iii) any entry by the Company or any material modification Company Subsidiary into, or any amendment of of, any currently effective employment, severanceseverance or termination agreement with any such director or executive officer;
(e) any change in accounting methods, termination principles or indemnification agreement practices by the Company or any agreement Company Subsidiary materially affecting the consolidated assets, liabilities or policy the benefits results of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company operations of the nature contemplated hereby or (ii) any action taken to accelerateCompany, amend or except insofar as may have been required by a change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansGAAP; or
(if) any agreement, whether in writing material elections with respect to Taxes by the Company or otherwise, to take any action described in this Section 2.7Company Subsidiary or settlement or compromise by the Company or any Company Subsidiary of any material Tax liability or refund.
Appears in 2 contracts
Sources: Merger Agreement (Cruzan International, Inc.), Merger Agreement (Absolut Spirits CO INC)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, Sheet there has not been:
: (ai) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, repurchase for value or redemption by the Company or other acquisition any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities its Subsidiaries except for repurchases from employees or consultants Employees following their termination of employment pursuant to the terms of their applicable pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any of its Subsidiaries’ capital stock, (iv) any granting by the Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case or any of its Subsidiaries of any material (i) through (iii) whether individually or in the aggregate) increase in compensation or fringe benefits, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition except for normal increases of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
practice (e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those to directors or officers of the Company), or any payment by the Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing its Subsidiaries of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, whether individually or in the aggregate) bonus, to be material to Company other than except for bonuses made in the ordinary course of business consistent with past practices and practice (other than threatened terminations of any identified Contract where Company has cured the underlying cause to directors or officers of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyCompany), or any granting by the Company or any of its Subsidiaries of any material (whether individually or in the aggregate) increase in severance or termination pay, pay or any entry by the Company or any of its Subsidiaries into any material modification (whether individually or amendment of any currently effective in the aggregate) employment, severance, termination or indemnification agreement agreement, (v) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or policy disposition of any material Intellectual Property (as defined in Section 3.09(a)(i)), other than non-exclusive license, supply and distribution agreements entered into in the benefits ordinary course of which are contingentbusiness consistent with past practice, (vi) any material (whether individually or in the aggregate) amendment or consent with respect to any Company Material Contract (as defined in Section 3.17) in effect since the date of the Company Balance Sheet, (vii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (viii) any material revaluation by the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7its assets.
Appears in 2 contracts
Sources: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince the date of the Company Balance Sheet through the date hereof, there has not been, accrued or arisen:
(a) any Effect that, individually or when taken together with all other Effects that have occurred since the date of the Company Balance SheetSheet through the date hereof, that has or would reasonably be expected to have a Material Adverse Effect on the Company;
(b) any acquisition by the Company or any Subsidiary of, or agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company and its Subsidiaries, taken as a whole;
(c) any entry into, amendment or termination by the Company Subsidiaries have conducted their respective businesses or any of its subsidiaries of any Contract, agreement in all material respects principle, letter of intent, memorandum of understanding or similar agreement with respect to any joint venture, strategic partnership or alliance, (in each case, other than reseller and licensing agreements entered into in the ordinary course of business. Since the date of business consistent with past practice) material to the Company Balance Sheetand its Subsidiaries, there has not been:
(a) taken as a Material Adverse Effect on Companywhole;
(i) any split, combination or reclassification of any capital stock, (iid) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsagreements and the repurchase of 1,025,300 shares of Company Common Stock pursuant to the Company’s stock repurchase program announced on May 5, 2005;
(e) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock;
(f) except to the extent such grant, payment, change or entry would not exceed $10,000 per individual, (i) any granting by the Company or any of its Subsidiaries, whether orally or in writing, of any increase in compensation or fringe benefits (except for normal increases of cash compensation to current non-officer employees in the ordinary course of business consistent with past practice), (ii) any payment by the Company or any of its Subsidiaries of any bonus (except for bonuses made to current non-officer employees in the ordinary course of business consistent with past practice), (iii) any amendment change by the Company or any of its Subsidiaries that materially increases the value of, or accelerates the timing of payment of any material term severance, termination or bonus policies or practices or (iv) any entry by the Company or any of its Subsidiaries into any outstanding securitycurrently effective Employee Agreement that is (A) an employment, severance, termination or indemnification agreement or (B) any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events), in any case as disclosed in Section 2.5(f) of the Company Disclosure Letter;
(cg) any (i) any disposing amendment, termination or impairment of or permitting consent with respect to lapse of any Company IP Rights that would be material and adverse to Material Contract, Lease Document or Company or Employee Plan entered into outside the ordinary course of business, ;
(iih) disposing of entry into any customer Contract that contains any material non-standard provisions for unpaid future deliverables or disclosing future royalty payments (except other than current royalty product offerings as necessary set forth in the conduct of its businessCompany’s current price list) to any Person other than representatives in the ordinary course of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or business consistent with past practice;
(iiii) any material change to Company’s by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP;
(j) any debt, capital lease or other debt or equity financing transaction by the Company or any of its Subsidiaries or entry into any agreement by the Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partyor any of its Subsidiaries in connection with any such transaction, except, except for capital leases entered into in the case ordinary course of (i) through (iii) business consistent with past practice which are not, individually or in the aggregate, as would not be material to the Company and Company its Subsidiaries, taken as a whole;
(dk) any sale, transfer, or other disposition grants of any material properties refunds, credits, rebates or assets (whether realother allowances by the Company or any of its Subsidiaries to any end user, personal customer, reseller or mixeddistributor, tangible or intangible) except in each case, other than in the ordinary course of business consistent with past practicespractice or otherwise previously accrued in the Company Balance Sheet;
(e) (il) any assumptionmaterial change in the level of product returns, guaranteebad debts or rights to accounts receivable which, endorsement individually or liability otherwise incurred in the aggregate, have had or are reasonably likely to have a material effect on accounts receivable reserves or other reserves maintained by the Company and its Subsidiaries (whether directlyother than historical seasonal changes or factors);
(m) any material reductions in force, contingently lease terminations, restructuring of contracts or otherwisesimilar actions;
(n) for the obligations any sale, lease, license, encumbrance or other disposition of any other Person other than those properties or assets except the sale, lease, license or disposition of property or assets which are not material, individually or in the aggregate, to the business of the Company or Company and any of its Subsidiaries, taken as a whole, or (ii) any making the licenses of any loancurrent Company Products, advance or capital contribution to or investment in any Personeach case, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessbusiness consistent with past practice;
(io) any loan, extension of credit or financing or grant of extended payment terms by the Company or any of its Subsidiaries to any Person other than in the ordinary course of business consistent with past practice;
(p) any material Tax election purchases of fixed assets or material other long-term assets other than in the ordinary course of business consistent with past practice;
(q) any adoption of or change in any Tax electionmaterial election in respect of Taxes, any material adoption or change in annual Tax any accounting period method in respect of Taxes, agreement or method of Tax accounting other than as required by applicable laws or regulations, any filing settlement of any material amended Tax Returns, any entering into of a closing agreement, settlement of claim or consent to any Tax claim, any surrendering of any right to claim a material refund assessment in respect of Taxes, or any consent to any extension or waiver of the statutory limitation period of limitation applicable to any material Tax claim, claim or assessment in respect of Taxes;
(iir) any material change in revaluation, or any method of accountingindication that such a revaluation is required under GAAP, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation Company of any material of its assets, including, without limitation, writingwriting down the value of long term or short-term investments, fixed assets, goodwill, intangible assets, deferred tax assets, or writing off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Planspractice; or
(is) any agreement, whether significant deficiency or material weakness identified in writing or otherwise, to take any action described in this Section 2.7the system of internal controls utilized by the Company and its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Sun Microsystems, Inc.), Merger Agreement (Seebeyond Technology Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since From the Interim Balance Sheet Date through the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheethereof, there has not been:
, occurred or arisen: (a) any event or condition of any character that has had or would be reasonably expected to have a Material Adverse Effect on the Company;
; (i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities securities, except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment agreements existing as of any material term of any outstanding security;
the Interim Balance Sheet Date; (c) any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company or outside of the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
its subsidiaries’ capital stock; (d) any salegranting by the Company or any of its subsidiaries of any increase in compensation or fringe benefits to any Employee (other than Consultants who are not Significant Consultants) or any payment by the Company or any of its subsidiaries of any bonus or any entry by the Company or one of its subsidiaries into any Contract (or amendment of an existing Contract) to grant or provide severance, transferacceleration of vesting, termination pay or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
similar benefits; (e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations execution of any other Person other than those employment Contract or service Contract, the extension of Company or Company Subsidiaries, or (ii) any making the term of any loan, advance existing employment Contract or capital contribution to or investment in service Contract with any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of TaxesEmployee, or any consent to any extension entry or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated other modification by the SEC, Company or (iii) any revaluation of its subsidiaries of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement Contract or any agreement or policy Contract the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby; (f) entry by the Company or any of its subsidiaries into (i) any licensing or other Contract providing for the use, acquisition or disposition of any Intellectual Property (as defined in Section 2.19 hereof) other than (A) licenses of commercially available third party software applications for internal use by the Company or otherwise in the Company’s ordinary course of business consistent with past practice and (B) confidentiality agreements in the ordinary course of business consistent with past practice, or (ii) any action taken amendment or consent with respect to accelerateany material licensing or other Contract providing for the use, amend acquisition or disposition of any Intellectual Property, other than confidentiality agreements in the ordinary course of business consistent with past practice; (g) any change by the period Company in its accounting methods, principles or practices (including any change in depreciation or amortization policies or rates or revenue recognition policies), except as required by concurrent changes in GAAP; (h) any revaluation by the Company of vesting any of its assets, including writing off promissory notes or exercisability of options or restricted stockaccounts receivable, or reprice Company Options granted under any sale of assets of the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansCompany; or
(i) entry by the Company or any agreementof its subsidiaries into any Contract (other than the Voting Agreements) filed or required to be filed by the Company with the SEC; (j) the incurrence, whether creation or assumption of any material Encumbrance (other than a Permitted Encumbrance) or any discharge of any material Encumbrance, any material Liability for borrowed money or any material Liability or obligation as guaranty or surety with respect to the obligations of others who are not wholly-owned subsidiaries of the Company, (k) any purchase, offer to purchase, sale, offer to sell, option to purchase or sell, agreement to transfer any interest in, or any lease, right to use, sublease or other occupancy, of any Company Real Estate (as defined in writing Section 2.15(a)) by the Company or otherwiseits subsidiaries; and (l) any announcement of or any agreement by the Company, any of its subsidiaries, or any Employee on behalf of the Company, to take do any action of the things described in this Section 2.7the preceding clauses (a) through (k) (other than negotiations or agreements with Parent and Merger Sub regarding the Transactions).
Appears in 2 contracts
Sources: Merger Agreement (Tanox Inc), Merger Agreement (Genentech Inc)
Absence of Certain Changes or Events. Except as set forth in Section 5.11 of the Company Disclosure Schedule or except for liabilities incurred in accordance with this Agreement or arising as a result of the transactions contemplated by or provided for in this Agreement, since the date of the Company Balance SheetSeptember 30, 2005, Company and Company its Subsidiaries have conducted their respective businesses in all material respects business only in the ordinary course of business. Since the date of the Company Balance Sheetand in a manner consistent with past practice and, since such date, there has not been:
(a) a any Company Material Adverse Effect on CompanyEffect;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the shares of capital stockstock of Company, or any purchaserepurchase, redemption or other acquisition by Company or any of its Subsidiaries of any of the outstanding shares of capital stock or any other securities of, or other partnership ownership interests in, Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or its Subsidiaries;
(iiic) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment security of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct any of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any saleincurrence, transferassumption or guarantee by Company or any of its Subsidiaries of any indebtedness with third parties for borrowed money, other than in the ordinary course of business and consistent with past practice (i) in connection with the purchases by Company or any of its Subsidiaries of wireless handset products for sale and resale and (ii) in connection with any other third party indebtedness which in no event shall exceed U.S. $5,000,000 in the aggregate;
(e) any creation or other disposition incurrence by Company or any of its Subsidiaries of any Lien on any material properties or assets (whether realasset, personal or mixed, tangible or intangible) except other than in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (iif) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Companythird party, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessbusiness and consistent with past practice;
(ig) any material Tax election transaction or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxescommitment made, or any consent contract or agreement entered into, by Company or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any extension assets) or waiver any relinquishment by Company or any of its Subsidiaries of any contract or other right, in either case, material to Company and its Subsidiaries, other than transactions and commitments in the statutory period ordinary course of limitation applicable to any material Tax claim, business consistent with past practices or those expressly contemplated by this Agreement;
(iih) any material change in any method of accounting, method of tax accounting or accounting principles or practicepractice by Company or any of its Subsidiaries, except for any such change required by reason of a concurrent change in GAAP or compliance with Regulation S-X under the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of businessExchange Act;
(gi) any loss of, or receipt of written notice (i) grant of any intention severance or termination pay to cancel (or otherwise terminateamendment to any existing arrangement with) any director, officer or employee of Company or any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company of its Subsidiaries other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofpractices, (iii) any increase or change in any compensation, bonus or other benefits or bonus paid or made payable to any director, officer or employee of their executive officers or directors, or employees earning more than $100,000 in base salary annually, Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practices, (iii) increase in benefits payable under any existing severance or termination paypay policies or employment agreements other than in the ordinary course of business consistent with past practices, (iv) entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practices, or any material modification (v) establishment, adoption or amendment (except as required by applicable law) of any currently effective employmentcollective bargaining, severancebonus, termination profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or indemnification agreement other benefit plan or arrangement covering any director, officer or employee of Company or any agreement or policy of its Subsidiaries, except in connection with the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company extension of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the exercise period of vesting or exercisability of options or restricted stock, or reprice existing Company Options granted under the held by Company Stock Plans directors and officers or authorization of cash payments any actions taken in exchange for any Company Options granted under the Company Stock Plansconnection with Section 1.2(b); or
(ij) any agreementmaterial Tax election made or changed, whether any annual tax accounting period changed, any method of tax accounting adopted or changed, any material amended Tax Returns or claims for material Tax refunds filed, any material closing agreement entered into, any material Tax claim, audit or assessment settled, or any right to claim a material Tax refund, offset or other reduction in writing or otherwise, to take any action described in this Section 2.7Tax liability surrendered.
Appears in 2 contracts
Sources: Merger Agreement (Intac International Inc), Merger Agreement (Intac International Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, the Company and its Subsidiaries have conducted their businesses in the ordinary course, in a manner consistent with past practice, and there has not been:
(a) a Material Adverse Effect on Company;
: (i) any splitevent, combination occurrence or reclassification development of any capital stock, a state of circumstances or facts which has had or could reasonably be expected to have a Material Adverse Effect; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the shares of capital stockstock of the Company, or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the outstanding shares of capital stock or any other securities of, or other partnership ownership interests in, the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or its Subsidiaries; (iii) any amendment of any material term of any outstanding security;
security of the Company or any of its Subsidiaries; (civ) any incurrence, assumption or guarantee by the Company (iother than guarantees of its Subsidiaries' obligations) or any of its Subsidiaries (other than guarantees of their Subsidiaries' obligations) of any indebtedness for borrowed money; (v) any disposing creation or impairment assumption by the Company or any of or permitting to lapse its Subsidiaries of any Company IP Rights that would be material and adverse Lien (except as contemplated by this Agreement) on any asset; (vi) any making of any loan, advance or capital contributions to Company or outside investment in any person other than loans, advances or capital contributions to or investments in wholly owned Subsidiaries made in the ordinary course of businessbusiness consistent with past practices; (vii) any condemnation, seizure, damage, destruction or other casualty loss (iiwhether or not covered by insurance) disposing affecting the business or assets of the Company or disclosing (except as necessary in the conduct any of its businessSubsidiaries; (viii) to any Person other than representatives transaction or commitment made, or any contract or agreement entered into, amended or terminated by the Company or any of Parent its Subsidiaries or any trade secret relinquishment by the Company or any Subsidiary of any contract or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, exceptright, in the case of (i) through (iii) in the aggregateeither case, as would not be material to the Company and Company Subsidiaries, its Subsidiaries taken as a whole;
; (dix) any salechange in any method of accounting or accounting practice by the Company or any of its Subsidiaries; (x) any (A) grant of any severance or termination pay to any director, transferofficer or employee of the Company or any of its Subsidiaries, (B) entering into or renewal of any employment, deferred compensation, severance, retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its Subsidiaries, (C) increase in benefits payable under any existing severance or termination pay policies or employment agreements, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangibleD) except in the ordinary course of business consistent with past practices;
practice, increase in compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its Subsidiaries; (e) (ixi) any assumptionlabor dispute, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or Company any of its Subsidiaries, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (iixii) any making capital expenditure, or commitment for a capital expenditure, for additions or improvements to property, plant and equipment in excess of any loan$500,000, advance individually or capital contribution to or investment $1,000,000 in any Person, including any director, officer or other affiliate of Company, the aggregate other than advances expenditures for planned build out of the Company's network that are in accordance with the budget agreed to employees between Parent and the Company; (xiii) except for travel capital expenditures and other reimbursable expenses commitments referred to in the ordinary course of business;
subsection (ixii) any material Tax election or material change in any Tax electionabove, any material change in annual Tax accounting period acquisition or method of Tax accounting other than as required by applicable laws or regulations, any filing disposition of any material amended Tax Returns, assets or properties or any entering into of a closing agreement, settlement of Intellectual Property (as defined in Section 3.11) in one or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxesmore transactions, or any consent commitment in respect thereof; (xiv) any express or deemed election for Tax (as defined below) purposes or any offer to settle or compromise or any settlement or compromise of any liability with respect to Taxes (as defined below); (xv) any offers to existing Subscribers (as defined in Section 3.19(i)) for renewal at rates below the standard rates charged by the Company and its Subsidiaries; or (xvi) any Outage (as defined below). As used herein, "Outage" means any complete loss of any service to any extension or waiver of the statutory period of limitation applicable System, including but not limited to any material Tax claimcomplete loss of network access, (ii) any material change in any method of accountingtelephone, method of accounting principles video, audio, Internet, data, bandwidth access, mail, web or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7services.
Appears in 2 contracts
Sources: Merger Agreement (21st Century Telecom Group Inc), Merger Agreement (RCN Corp /De/)
Absence of Certain Changes or Events. Except as contemplated by From March 31, ------------------------------------ 1999 through the date of this Agreement, since there has not been (i) any event, occurrence or condition which, individually or in the date aggregate, would be reasonably likely to have a Material Adverse Effect, (ii) any amendments or changes in the Certificate of Incorporation or Bylaws of the Company, (iii) any revaluation by the Company Balance Sheet, Company and Company or any of its Subsidiaries have conducted of any of their respective businesses in all material respects assets, including, without limitation, write-offs of accounts receivable, other than in the ordinary course of business. Since the date of Company's and its Subsidiaries' businesses consistent with historical practices, (iv) any material change by the Company Balance Sheetor any of its Subsidiaries in its accounting methods, there has not been:
principles or practices, (a) a Material Adverse Effect on Company;
(iv) any splitentry by the Company or any Subsidiary into any contract material to the Company and the Subsidiaries, combination or reclassification of any capital stocktaken as a whole, (iivi) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of the shares of capital stock, Company or any purchaseredemption, redemption repurchase or other acquisition of any of its securities (other than regular quarterly dividends on the shares of capital stock Common Stock and regular dividends on the shares of ESOP Preferred Stock), (vii) any event pursuant to which the Company or any other securities of its Subsidiaries (A) incurred any liabilities (direct, contingent or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant otherwise) which are material to the terms of their pre-existing stock option or purchase agreementsCompany and its Subsidiaries, taken as a whole, or (iiiB) engaged in any amendment transaction or entered into any agreement material to the Company and its Subsidiaries, taken as a whole, in each of any material term clause (A) and (B) outside of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, or (iiviii) disposing other than pursuant to the contractual arrangements referred to in Section 3.10 and Annex B, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or disclosing (except as necessary restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the conduct of its business) compensation payable or to become payable to any Person other than representatives officers or key employees of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s the Company or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.
Appears in 2 contracts
Sources: Merger Agreement (H2o Acquisition Co), Merger Agreement (Nalco Chemical Co)
Absence of Certain Changes or Events. Except as set forth in Section 3.09 of the Company Disclosure Schedule or as contemplated by this Agreement, since the date of December 31, 2004, the Company Balance Sheet, Company and Company Subsidiaries its subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheet, business and in a manner consistent with past practice and there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method accounting or accounting practice by the Company or any of accounting principles or practiceits subsidiaries, except for any such change required by reason of a concurrent change in GAAP United States generally accepted accounting principles;
(b) any declaration, setting aside or compliance with the applicable requirements payment of any dividend (whether in cash, stock or other property) or other distribution in respect of the rules and regulations promulgated by Company’s securities or any redemption, purchase or other acquisition of any of the SEC, or Company’s securities;
(iiic) any revaluation issuance or the authorization of any issuance of any securities in respect of, in lieu of or in substitution for shares of the Company’s capital stock;
(d) any amendment of any material assetsterm of any outstanding security of the Company or any of its subsidiaries except as required under Section 3.19 hereof;
(e) any issuance by the Company or any of its subsidiaries of any notes, includingbonds or other debt securities or any capital stock or other equity securities or any securities convertible, without limitationexchangeable or exercisable into any capital stock or other equity securities, writing-off notes except for (i) the granting of Options and (ii) the issuance of any Common Shares pursuant to the exercise of any Options;
(f) any incurrence, assumption or accounts receivable other than in guarantee by the ordinary course Company or any of businessits subsidiaries of any indebtedness for borrowed money;
(g) except for Permitted Liens (as defined in Section 3.25), any loss of, creation or receipt assumption by the Company or any of written notice its subsidiaries of any intention Lien on any material assets;
(h) except for loans or advances to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than employees for reimbursable business expenses and travel advances incurred in the ordinary course of business consistent with past practices and practice, any making of any loan, advance or capital contributions to or investment in any entity or person, other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains loans, advances or capital contributions to or investments in full force and effectwholly owned subsidiaries;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreemententry into any definitive agreement related to the acquisition or disposition of any business or any material assets;
(j) any effect, whether event or change that has had or is reasonably likely to have a Company Material Adverse Effect;
(k) any material increase in writing the benefits under, or otherwisethe establishment, material amendment or termination of, any Benefit Plan (as defined in Section 3.13(b)) covering current or former employees, officers or directors of the Company or any of its subsidiaries, or any material increase in the compensation payable or to take become payable to or any action other material change in the employment terms for any directors or officers of the Company or any of its subsidiaries or any other employee earning noncontingent cash compensation in excess of $100,000 per year;
(l) any entry by the Company or any of its subsidiaries into any employment, consulting, severance, termination, change-of-control or indemnification agreement with any director or officer of the Company or any of its subsidiaries or entry into any such agreement with any person for a noncontingent cash amount in excess of $100,000 per year or outside the ordinary course of business; or
(m) any authorization of, or agreement by the Company or any of its subsidiaries to take, any of the actions described in this Section 2.73.09, except as expressly contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Datastream Systems Inc), Merger Agreement (Magellan Holdings, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince December 31, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, 2005 there has not been:
(a) , except where it would not have a Material Adverse Effect on Company;
(i) any splitthe Parent Guarantor, combination the Company or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material Subsidiaries and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in permitted and/or required by the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or Merger Agreement (iiia) any material change to Company’s liability incurred by the Parent Guarantor, the Company or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company their Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except than current liabilities incurred in the ordinary course of business consistent in type and amount with past practices;
, (e) (ib) any assumptionmaterial asset or property of the Parent Guarantor, guarantee, endorsement the Company or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations any of their Subsidiaries made subject to any Encumbrance of any other Person other than those kind (except pursuant to the Security Documents), (c) any cancellation of any debt owed to or claim held by the Parent Guarantor, the Company or Company any of their Subsidiaries, or (iid) any making payment of dividends on, or other distribution with respect to, or any direct or indirect redemption, purchase or acquisition of, any shares of the capital stock or other securities of the Parent Guarantor, the Company or any of their Subsidiaries., (f) any disposition of any loantangible or intangible material asset of the Parent Guarantor, advance the Company or capital contribution any of their Subsidiaries, (g) any loan by the Parent Guarantor, the Company or any of their Subsidiaries to or investment in any Personofficer, including any director, officer employee, consultant, agent, Affiliate or other affiliate stockholder of Companythe Parent Guarantor, the Company or any of their Subsidiaries (other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than persons in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
connection with bona fide business expenses), (h) as any damage, destruction or loss (whether or not covered by insurance) of any asset of the date hereofParent Guarantor, the Company or any of their Subsidiaries, (i) any increase extraordinary increase, direct or change indirect, in any compensation, benefits or bonus the compensation paid or made payable to any officer, director, employee, consultant or agent of the Parent Guarantor, the Company or any of their executive officers or directorsSubsidiaries, or employees earning more than $100,000 in base salary annually(j) any write-down of the value of any inventory, or any increase in severance write-off as uncollectible of any account or termination paynote receivable of the Parent Guarantor, the Company or any material modification or amendment of any currently effective employmenttheir Subsidiaries that is not consistent in type and amount with the Parent Guarantor’s, severance, termination or indemnification agreement the Company’s or any agreement of their Subsidiaries’ past practices or policy the benefits of for which are contingentadequate amounts had not been reserved, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (iik) any action taken to acceleratechange in the accounting methods, amend practices or change policies followed by the period of vesting or exercisability of options or restricted stockParent Guarantor, or reprice Company Options granted under the Company Stock Plans or authorization any of cash payments their Subsidiaries or any change in exchange depreciation or amortization policies or rates theretofore adopted, which has not been adequately provided for any Company Options granted under or disclosed in the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Financial Statements.
Appears in 2 contracts
Sources: Loan Agreement (Israel Technology Acquisition Corp.), Loan Agreement (Israel Technology Acquisition Corp.)
Absence of Certain Changes or Events. Except as contemplated by From the date of the Company Balance Sheet to and including the date of this Agreement, since the Company and its Subsidiaries have conducted their respective businesses and operations in the ordinary course consistent with past practice and neither the Company nor any of its Subsidiaries has:
(a) split, combined, or reclassified any shares of its capital stock or made any other changes in its equity capital structure;
(b) purchased, redeemed, or otherwise acquired, directly or indirectly, any shares of its capital stock or any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock;
(c) declared, set aside, or paid any dividend or made any other distribution in respect of shares of its capital stock, except for dividends or distributions by any of the Company's Subsidiaries to the Company or another of the Company's Subsidiaries;
(d) issued any shares of its capital stock or granted any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock, except for issuances of shares of Company Common Stock upon the exercise of options granted on or before the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) purchased any assumptionbusiness, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations purchased any stock of any other Person corporation other than those of Company or Company Subsidiariesthe Company, or (ii) merged or consolidated with any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessperson;
(if) any material Tax election sold, leased, licensed or material change in any Tax election, any material change in annual Tax accounting period encumbered or method of Tax accounting other than as required by applicable laws or regulations, any filing otherwise disposed of any material amended Tax Returnsassets or properties, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than threatened terminations of inventory, in any identified Contract where event, were not material to the Company has cured and its Subsidiaries, taken as a whole;
(g) incurred, assumed, or guaranteed any indebtedness for money borrowed other than (i) borrowing incurred for working capital purposes under the underlying cause of the threat Company's existing revolving credit facility and such Contract still remains in full force and effect(ii) intercompany indebtedness;
(h) changed or modified in any material respect any existing accounting method, principle or practice, other than as of the date hereof, required by GAAP;
(i) except for this Agreement, entered into any commitment to do any of the foregoing;
(j) suffered any business interruption, damage to or destruction of its properties, or other incident, occurrence, or event that has had or would be reasonably likely to have (after giving effect to insurance coverage), individually or in the aggregate, a Company Material Adverse Effect;
(k) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or change compensation expense to the Company, increased in any compensationmanner the compensation or benefits of any employee who is not a director or officer, former employee, or independent contractor providing personal services of the Company or its Subsidiaries ("Company Employee");
(l) increased the compensation or benefits of any officer or bonus paid director of the Company or made payable to any of their executive officers or directorsits Subsidiaries, or employees earning more other than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansconsistent with past practice; or
(im) entered into or amended any contract, agreement, whether employment, severance or special pay arrangement with any Company Employee, except in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Minntech Corp), Merger Agreement (Netsilicon Inc)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince the date of the Company Balance Sheet and through the date hereof there has not occurred or arisen:
(a) any Effect that, individually or when taken together with all other Effects that have occurred since the date of the Company Balance SheetSheet through the date hereof, that has or would reasonably be expected to have a Material Adverse Effect on the Company;
(b) any acquisition by the Company or any Subsidiary of, or agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company and its Subsidiaries, taken as a whole;
(c) any entry into, amendment or termination by the Company or any of its Subsidiaries have conducted their respective businesses of any Contract, agreement in all material respects principle, letter of intent, memorandum of understanding or similar agreement with respect to any joint venture, strategic partnership or alliance, (in each case, other than reseller, original equipment manufacturer (“OEM”) and licensing agreements entered into in the ordinary course of business. Since the date of ) material to the Company Balance Sheetand its Subsidiaries, there has not been:
(a) taken as a Material Adverse Effect on Companywhole;
(i) any split, combination or reclassification of any capital stock, (iid) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(e) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock;
(f) except to the extent such grant, payment, change or entry would not exceed $10,000 per individual or pursuant to agreements outstanding as of the date of the Company Balance Sheet, (i) any granting by the Company or any of its Subsidiaries, whether orally or in writing, of any increase in compensation or fringe benefits (except for normal increases of cash compensation to current non-officer employees in the ordinary course of business), (ii) any payment by the Company or any of its Subsidiaries of any bonus (except for bonuses made to current non-officer employees in the ordinary course of business), (iii) any amendment change by the Company or any of its Subsidiaries that materially increases the value of, or accelerates the timing of payment of any material term severance, termination or bonus payments or benefits to any current officer or employee of the Company or (iv) any outstanding securityentry by the Company or any of its Subsidiaries into any currently effective agreement that is (A) an employment, severance, termination or indemnification agreement with any officer of the Company outside the ordinary course of business or (B) any agreement with any officer of the Company the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events), in any case as disclosed in Section 3.5(f) of the Company Disclosure Letter;
(cg) any (i) any disposing material amendment, termination or impairment of or permitting consent with respect to lapse of any Company IP Rights that would be material and adverse to Material Contract, Material Lease Document or Company or Benefit Plan entered into outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its businessrequired by applicable law;
(h) to entry into any Person other than representatives of Parent customer Contract that contains any trade secret material non-customary provisions for future deliverables or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or future royalty payments;
(iiii) any material change to Company’s by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP;
(j) any debt, capital lease or other debt or equity financing transaction, other than trade and other ordinary course payables, by the Company or any of its Subsidiaries or entry into any agreement by the Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partyor any of its Subsidiaries in connection with any such transaction, except, except for capital leases entered into in the case ordinary course of (i) through (iii) business which are not, individually or in the aggregate, as would not be material to the Company and Company its Subsidiaries, taken as a whole;
(dk) other than pursuant to Contracts in effect on the date hereof, any sale, transfer, or other disposition grants of any material properties refunds, credits, rebates or assets (whether realother allowances by the Company or any of its Subsidiaries to any end user, personal customer, reseller or mixeddistributor, tangible or intangible) except in each case, other than in the ordinary course of business consistent with past practicesor otherwise previously accrued in the Company Balance Sheet;
(e) (il) any assumptionmaterial change in the level of product returns, guaranteebad debts or rights to accounts receivable which, endorsement individually or liability otherwise incurred in the aggregate, have had or are reasonably likely to have a material effect on accounts receivable reserves or other reserves maintained by the Company and its Subsidiaries (whether directlyother than historical seasonal changes or similar factors);
(m) any material reductions in work force, contingently real property lease terminations with respect to Material Leased Real Property, or otherwiseother exit or disposal plan which would be required to be disclosed by Item 2.01 of Form 8-K;
(n) for the obligations any sale, lease, license, encumbrance or other disposition of any other Person other than those Material Leased Real Property or assets except the sale, lease, license or disposition of property or assets which are not material, individually or in the aggregate, to the business of the Company or Company and any of its Subsidiaries, taken as a whole, or (ii) any making the licenses of any loancurrent Company products, advance or capital contribution to or investment in any Personeach case, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(io) any loan, extension of credit or financing or grant of extended payment terms by the Company or any of its Subsidiaries to any Person other than in the ordinary course of business;
(p) any material Tax election purchases of fixed assets or material other long-term assets other than in the ordinary course of business;
(q) any adoption of or change in any Tax electionmaterial election in respect of Taxes, any material adoption or change in annual Tax any accounting period method in respect of Taxes, agreement or method of Tax accounting other than as required by applicable laws or regulations, any filing settlement of any material amended Tax Returns, any entering into of a closing agreement, settlement of claim or consent to any Tax claim, any surrendering of any right to claim a material refund assessment in respect of Taxes, or any consent to any extension or waiver of the statutory limitation period of limitation applicable to any material Tax claim, claim or assessment in respect of Taxes;
(ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iiir) any revaluation by the Company of any material of its or its Subsidiaries’ assets, including, without limitation, writingwriting down the value of long term or short-term investments, fixed assets, goodwill, intangible assets, deferred tax assets, or writing off notes or accounts receivable other than in the ordinary course of businessbusiness and which would be material to the Company and its Subsidiaries, taken as a whole, or to the Company’s knowledge, any factor or circumstance, that, in accordance with GAAP, would require any such material revaluation;
(gs) any loss of, significant deficiency or receipt of written notice of any intention to cancel or otherwise terminate, any material weakness identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course system of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under internal controls utilized by the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansand its Subsidiaries; or
(it) brought, or had brought against it, any litigation or proceeding related to Intellectual Property, or settled any litigation;
(u) any agreement, whether in writing written agreement (other than this Agreement or otherwise, the agreements contemplated hereby) to take any action described in this Section 2.73.5.
Appears in 2 contracts
Sources: Merger Agreement (Corel Corp), Merger Agreement (Intervideo Inc)
Absence of Certain Changes or Events. Except as contemplated by for liabilities incurred in connection with this Agreement, since the date of the most recent financial statements included in the Filed Company Balance SheetSEC Documents, the Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetconsistent with past practice, and there has not been:
(a) a been any Material Adverse Effect on Company;
Change, and from such date until the date hereof there has not been (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than (A) cash dividends payable by the Company in respect of, any of shares of Company Common Stock consistent with past practice and not exceeding $0.11 per share of Company Common Stock per fiscal quarter or (B) dividends or distributions by a Subsidiary of the shares of capital stockCompany to the Company or another Subsidiary wholly owned by the Company, or (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities of the Company or other partnership interests any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssecurities, or (iii) any amendment split, combination or reclassification of any material term capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any outstanding security;
issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (civ) (A) any granting by the Company or any of its Subsidiaries to any current or former (i1) director of the Company or (2) current employees with the Company or any disposing of its Subsidiaries who are party to a change of control or impairment of or permitting to lapse severance agreement (all individuals described in the foregoing Sections 3.01(g)(iv)(A)(1) and (2) (collectively, the “Key Personnel”) of any Company IP Rights that would be material and adverse to Company increase in compensation, bonus or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret fringe or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementbenefits, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
practice or as was required under any Company Benefit Agreement or Benefit Plan, (e) (iB) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for granting by the obligations of any other Person other than those of Company or Company Subsidiaries, any of its Subsidiaries to any Key Personnel of (1) any increase in severance or termination pay or (ii2) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, receive any severance or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, termination pay except for any such change required by reason of a concurrent change in GAAP severance or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than termination pay received in the ordinary course of business consistent with past practices and other than threatened terminations of practice or as was required under any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofBenefit Agreement or Benefit Plan, (iC) any increase entry by the Company or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyits Subsidiaries into, or any increase in severance or termination payamendments of, or (1) any material modification or amendment of any currently effective employment, deferred compensation, consulting, severance, change of control, termination or indemnification agreement Contract with any Key Personnel or any agreement other director, officer or policy employee of the Company or any of its Subsidiaries or (2) any Contract with any Key Personnel or any other director, officer or employee of the Company or any of its Subsidiaries the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Merger (all such Contracts under this Section 3.01(g)(iv)(C), collectively, “Company Benefit Agreements”), (D) the removal or modification of any restrictions in any Company Benefit Agreement or Benefit Plan or awards made thereunder, except as required to comply with applicable Law or the terms or provisions of any Company Benefit Agreement or Benefit Plan in effect as of the nature contemplated hereby date hereof and except as may be effected in the ordinary course of business consistent with past practice or (iiE) the adoption, amendment or termination of any Benefit Plan, other than, in the case of Sections 3.01(g)(iv)(A), 3.01(g)(iv)(B), 3.01(g)(iv)(C), and 3.01(g)(iv)(D), such increases, amendments, new agreements, removals, modifications or terminations that (1) do not provide for any increase in compensation or benefits for any individual Key Personnel that is material in relation to such person’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Company and its Subsidiaries, and (v) any action taken to acceleratechange in financial accounting methods, amend principles or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under practices by the Company Stock Plans materially affecting its assets, liabilities or authorization of cash payments businesses, except insofar as may have been required by a change in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7GAAP.
Appears in 2 contracts
Sources: Merger Agreement (Valassis Communications Inc), Merger Agreement (Advo Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth in Section 2.5 of the Company Disclosure Letter, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since Sheet through the date of the Company Balance Sheethereof, there has not been, accrued or arisen:
(a) a any Material Adverse Effect on the Company;
(ib) any splitacquisition by the Company or any Subsidiary of, combination or reclassification agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company;
(c) any capital stockContract, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance;
(iid) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(ce) any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company or outside of the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company its Subsidiaries, taken as a whole’ capital stock;
(df) any salegranting by the Company or any of its Subsidiaries, transferwhether orally or in writing, or other disposition of any material properties increase in compensation or assets fringe benefits (whether real, personal or mixed, tangible or intangible) except for normal increases of cash compensation to current non-officer employees in the ordinary course of business consistent with past practices;
(epractice) (i) or any assumption, guarantee, endorsement payment by the Company or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations any of its Subsidiaries of any other Person other than those of Company or Company Subsidiaries, or bonus (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writingbonuses made to current non-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than officer employees in the ordinary course of business consistent with past practices and other than threatened terminations practice) or any change by the Company or any of any identified Contract where Company has cured the underlying cause its Subsidiaries of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofseverance, (i) any increase or change in any compensation, benefits termination or bonus paid policies and practices or made payable to any entry by the Company or any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events;
(iig) any action taken amendment, termination or consent with respect to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under Material Contract, other than in the Company Stock Plans; orordinary course of business, consistent with past practice;
(h) entry into any material customer Contract that contains any material non-standard terms, including but not limited to, non-standard discounts, provisions for unpaid future deliverables, non-standard service requirements or future royalty payments other than as is consistent with past practice;
(i) any agreementmaterial change by the Company in its accounting methods, whether principles or practices, except as required by concurrent changes in writing GAAP;
(j) any debt, capital lease or otherwiseother debt or equity financing transaction by the Company or any of its Subsidiaries or entry into any agreement by the Company or any of its Subsidiaries in connection with any such transaction, except for capital lease and receivables financings entered into in the ordinary course of business consistent with past practice which are not individually or in the aggregate material to the Company and its Subsidiaries taken as a whole;
(k) any grants of any material refunds, credits, rebates or other allowances by the Company to any end user, customer, reseller or distributor, in each case, other than in the ordinary course of business consistent with past practice;
(l) any material change in the level of product returns or factors influencing accounts receivable or warranty reserves experienced by the Company or any of its Subsidiaries;
(m) any material restructuring activities by the Company or any of its Subsidiaries, including any material reductions in force, lease terminations, restructuring of contracts or similar actions;
(n) any sale, lease, license, encumbrance or other disposition of any properties or assets except the sale, lease, license or disposition of property or assets which are not material, individually or in the aggregate, to take the business of the Company or the licenses of current Company Products, in each case, in the ordinary course of business and in a manner consistent with past practice;
(o) any action described loan or extension of credit by the Company or any of its Subsidiaries to any Person other than in this Section 2.7the ordinary course of business and in a manner consistent with past practice;
(p) any material purchases of fixed assets, spares or other long-term assets other than in the ordinary course of business and in a manner consistent with past practice;
(q) adoption of or change in any material election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes;
(r) any material revaluation, or any indication that such a revaluation was merited under GAAP, by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory, spares, long term or short-term investments, fixed assets, goodwill, intangible assets, deferred tax assets, or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice; or
(s) any significant deficiency or material weakness identified in the system of internal controls utilized by the Company and its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Storage Technology Corp), Merger Agreement (Sun Microsystems, Inc.)
Absence of Certain Changes or Events. Except as contemplated by (i) From December 31, 2014 to the date of this Agreement, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses only in the ordinary course consistent in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, with past practice and there has not been:
been (aA) any state of facts, change, development, event, effect (including any effect resulting from an occurrence prior to December 31, 2014), condition, occurrence, action or omission that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stockEffect, (iiB) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock or other equity or voting interests, except for dividends by a direct or indirect wholly owned Subsidiary of the Company to its parent, (C) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stockstock of, or other equity or voting interests in, the Company or any purchaseof its Subsidiaries, (D) any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities of the Company or other partnership interests any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination (other than pursuant to the terms forfeiture conditions of their pre-existing stock option options or purchase agreementsrestricted shares or the cashless exercise or tax withholding provisions of stock options or restricted shares, or as applicable, in each case in accordance with the applicable Company Stock Plan as in effect on the date of this Agreement), (iiiE)(1) any amendment grant by the Company or any of its Subsidiaries to any current or former director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries (collectively, “Company Personnel”) of any material term of bonus or award opportunity, any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s loan or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partyincrease in any type of compensation or benefits, exceptexcept for grants of normal bonus opportunities and normal increases of base cash compensation, in the case of (i) through (iii) in the aggregateeach case, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiariespractice, or (ii2) any making payment by the Company or any of its Subsidiaries to any Company Personnel of any loan, advance bonus or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practiceaward, except for any such change required by reason bonuses or awards paid prior to the date of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than this Agreement in the ordinary course of business consistent with past practices and other than threatened terminations practice, (F) any grant by the Company or any of its Subsidiaries to any Company Personnel of any identified Contract where Company has cured the underlying cause severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein or of the threat and such Contract still remains right to receive any severance, separation, change in full force and effect;
(h) as of the date hereofcontrol, retention, termination or similar compensation or benefits or increase therein, (iG) any increase adoption or change in any compensation, benefits establishment of or bonus paid entry by the Company or made payable to any of their executive officers its Subsidiaries into, any amendment of, modification to or directorstermination of, or employees earning more than $100,000 in base salary annuallyagreement to amend, modify or terminate, or any increase termination of (or announcement of an intention to amend, modify or terminate), (1) any employment, deferred compensation, change in severance or termination pay, or any material modification or amendment of any currently effective employmentcontrol, severance, termination termination, employee benefit, loan, indemnification, retention, equity or indemnification agreement equity‑based compensation, consulting or similar Contract between the Company or any agreement of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, (2) any Contract between the Company or policy any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated hereby by this Agreement (alone or in combination with any other event), (3) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, concerning non-competition, non-solicitation or customers or employees, non-disclosure of information, ownership of Intellectual Property Rights or any other restrictive covenant or (4) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any compensation or benefit to be provided to any Company Personnel (all such Contracts under this clause (G), including any such Contract that is entered into on or after the date of this Agreement, collectively, “Benefit Agreements”), (H) any grant or amendment of any award under any Benefit Plan or Benefit Agreement (including the grant or amendment of Stock Options, Restricted Shares, restricted stock units, stock appreciation rights, performance units, stock repurchase rights or other equity or equity‑based compensation) or the removal or modification of any restrictions in any such award, (I) any payment to any Company Personnel of any compensation or benefit not provided for under any Benefit Plan or Benefit Agreement, other than the payment of base cash compensation or incentive or bonus payments in the ordinary course of business consistent with past practice, (J) other than the execution and delivery of this Agreement, the taking of any action to accelerate, or that is reasonably likely to result in the acceleration of, the time of vesting or payment of any rights, compensation, benefits or funding obligations, or the making of any material determinations, under any Benefit Plan or Benefit Agreement or otherwise, (K) any material change in financial or tax accounting methods, principles or practices by the Company or any of its Subsidiaries, except insofar as may have been required by GAAP or applicable Law, (L) any material tax election or change in any material tax election or any settlement or compromise of any material tax liability, (M) any material write-down by the Company or any of its Subsidiaries of any of the material assets of the Company or any of its Subsidiaries or (N) any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property or rights thereto, other than nonexclusive licenses granted in the ordinary course of the business of the Company and its Subsidiaries consistent with past practice.
(ii) any action taken From December 31, 2014 to acceleratethe date of this Agreement, amend or change each of the period of vesting or exercisability of options or restricted stockCompany and its Subsidiaries has continued all pricing, sales, receivables, or reprice Company Options granted under payables practices in accordance with the ordinary course of business consistent with past practice and has not engaged, except in the ordinary course of business consistent with past practice, in (A) any trade loading practices or any other promotional sales or discount activity, with any customers or distributors with the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected to occur in subsequent fiscal quarters, (B) any practice that would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected to be made in subsequent fiscal quarters, (C) any practice that would have the effect of postponing to subsequent fiscal quarters payments by the Company Stock Plans or authorization any of cash payments its Subsidiaries that would otherwise be expected to be made in exchange for prior fiscal quarters (including the current fiscal quarter) or (D) any Company Options granted other promotional sales, discount activity, deferred revenue activity or inventory overstocking or understocking activity, in each case under this clause (D) in a manner outside the ordinary course of business or inconsistent with past practice. From December 31, 2014 to the date of this Agreement, all software revenue recognized through resellers relates to software that has been installed with end users, and there are no rights of return or any other refund provisions related to these sales.
(iii) From December 31, 2014 to the date of this Agreement, each of the Company Stock Plans; or
(i) any agreementand its subsidiaries has invested and made expenditures, whether including with respect to sales, marketing and development activities, in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice of the Company and its subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Merge Healthcare Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth on Schedule 2.26, since the date of the Company Balance SheetJanuary 1, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet2017, there has not been:
(a) any change in the assets, liabilities, operating results or condition (financial or otherwise) of the Company that would reasonably be expected to result in a Material Adverse Effect on CompanyEffect;
(ib) any splitredemption, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption purchase or other acquisition of any of the shares of Company’s capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities of the Company except for repurchases from employees or consultants following their termination as may occur after the date hereof solely pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitythis Agreement;
(c) any (i) any disposing or impairment of or permitting to lapse grant of any Company IP Rights that would be material and adverse option to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret purchase or other Intellectual Property Rights not theretofore a matter right to acquire any of public knowledge to the Shares or any party that is not subject to a nondisclosure or similar agreementcapital stock of the Company, any grant of any stock appreciation rights, or any issuance of shares of capital stock (iiiwhether treasury shares or otherwise) any material change to by the Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, indebtedness incurred for borrowed money or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in commitment to borrow money by the ordinary course of business consistent with past practicesCompany;
(e) (i) any assumptionsale, guarantee, endorsement assignment or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations transfer of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessLicenses;
(if) any mortgage, pledge, transfer of a security interest in, or Lien, created by the Seller or the Company, with respect to any of the Company’s material Tax election properties or material assets, including but not limited to its Licenses, excluding Liens for taxes not yet due or payable;
(g) any dividend, distribution or payment on shares of capital stock of the Company declared, made, set aside or paid, except as contemplated pursuant to and consistent with the terms of this Agreement;
(h) with respect to the Company, any making, revocation of or change in any Tax electionelection in respect of Taxes, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax ReturnsReturn, any entering into of a any closing agreement, settlement settling any claim or assessment in respect of or consent to Taxes, surrendering by any Tax claim, any surrendering of affirmative action any right to claim a material refund of Taxes, or any consent consenting to any extension or waiver of the statutory period any statute of limitation applicable to any material Tax claim, (ii) any material change claim or assessment in any method respect of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansTaxes; or
(i) any agreementamount which is presently due and payable from the Company in respect of any guaranties or similar instruments, whether in writing issued by the Company guaranteeing loans advanced to its agents by any financial institution under any agent loan program or otherwise, similar type program. The Company has not entered into any oral or written agreement as to take any action of the acts or things described in this Section 2.72.26.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Employers Holdings, Inc.), Stock Purchase Agreement (Employers Holdings, Inc.)
Absence of Certain Changes or Events. Except (a) as disclosed (i) in the Company SEC Documents, or (ii) in Schedule 4.7 of the Disclosure Schedule, and (b) if this representation is being made at Closing, as expressly provided in this Agreement or as contemplated by this Agreementthe parties in connection with obtaining financing for the Merger, since the date of December 31, 2003, the Company Balance Sheet, Company and Company the Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since and, to the date of the Company Balance SheetCompany’s Knowledge, in a manner consistent with past practice, and there has not been:
(a) a Material Adverse Effect on Companyany material adverse change in the business, operations, properties, condition (financial or otherwise), or assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Subsidiary;
(ib) any splitmaterial damage, combination destruction or reclassification of loss (if not covered by insurance) with respect to any capital stock, (ii) any declaration, setting aside material property or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any asset of the shares of capital stock, Company or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitySubsidiary;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to change by the Company or outside the ordinary course of businessany Subsidiary in its accounting methods, (ii) disposing of principles or disclosing (practices, except as necessary required by applicable laws, regulations or accounting pronouncements, provided that each such change has been disclosed in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholeSEC Documents;
(d) any sale, transfer, revaluation by the Company or other disposition any Subsidiary of any material properties or assets asset (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-any writing down of the value of inventory or writing off of notes or accounts receivable other than in the ordinary course of business;
(g) any loss ofreceivable), or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice;
(e) other than threatened terminations the distribution of quarterly dividends consistent with past practice with respect to outstanding shares of Company Preferred Stock, any declaration, setting aside or payment of any identified Contract where Company has cured the underlying cause dividend or distribution in respect of any capital stock (or ownership interests) of the threat and such Contract still remains in full force and effectCompany or any Subsidiary, or any redemption, purchase or other acquisition of any of their respective securities;
(f) any issuance to any director, officer or employee of the Company or any Subsidiary of any options, warrants, rights, or convertible securities relating to the issued or unissued capital stock (or ownership interests) of the Company or any Subsidiary other than pursuant to the Company ESP Plan;
(g) any acquisition by the Company or any Subsidiary (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) of any corporation, partnership, other business organization or any division thereof or any material amount of assets;
(h) as any incurrence of Indebtedness other than in the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any ordinary course of their executive officers or directors, or employees earning more than $100,000 in base salary annually, business and consistent with past practice or any increase in severance or termination pay, issuance of any debt securities by the Company or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; orSubsidiary;
(i) any agreementassumption or guarantee by the Company or any Subsidiary of the obligations of any Person;
(j) other than trade payables, whether extensions of credit to customers and advances to employees and independent contractors for travel expenses or wage or salary advances for non-executive employees of the Company that do not exceed two weeks wages or salary, in writing each case in the ordinary course of business and consistent with past practice, any loan or otherwiseadvance by the Company or any Subsidiary to any Person;
(k) any authorization of, or commitment to take make, any action described capital expenditure that exceeds the Company’s 2004 capital expenditure budget, a copy of which has been previously provided to Parent (the “2004 Capital Expenditure Budget”); or
(l) any increase in this Section 2.7the compensation payable or to become payable or the benefits provided or to be provided to any director, officer or employee of the Company or any Subsidiary, except for increases in the ordinary course of business and consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Safeguard Scientifics Inc), Merger Agreement (Compucom Systems Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since disclosed in the date Company SEC Reports or as disclosed in Section 5.6 of the Company Balance SheetDisclosure Schedule, Company and Company Subsidiaries have conducted their respective businesses in all material respects since December 31, 1996, there has not been (i) any transaction, commitment, dispute or other event or condition (financial or otherwise) of any character (whether or not in the ordinary course of business. Since ) individually or in the date of aggregate that has had, or would reasonably be expected to have, a Company Material Adverse Effect; (ii) any damage, destruction or loss, whether or not covered by insurance, which has had, or would reasonably be expected to have, a Company Material Adverse Effect; (iii) any entry into any commitment or transaction material to the Company Balance Sheetand its Subsidiaries taken as a whole (including, there has not been:
without limitation, any borrowing or sale of assets) except in the ordinary course of business consistent with past practice; (a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (iiiv) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with respect to its capital stock; (v) any material change in its accounting principles, practices or methods; (vi) any repurchase or redemption with respect to its capital stock; (vii) any split, combination or reclassification of any of the Company's capital stock or the issuance or authorization of any issuance of any other securities in respect of, any in lieu of or in substitution for, shares of the shares of Company's capital stock, ; (viii) any grant of or any purchase, redemption or other acquisition amendment of the terms of any of the option to purchase shares of capital stock of the Company; (ix) any granting by the Company or any other securities of its Subsidiaries to any director, officer or other partnership interests employee of the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or its Subsidiaries of (iiiA) any amendment of any material term of any outstanding security;
increase in compensation (c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except employees in the ordinary course of business consistent with past practices;
(epractice) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (iiB) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, ; (x) any entry by the Company or any material modification or amendment of its Subsidiaries into any currently effective employment, severance, bonus or termination agreement with any director, officer or indemnification agreement employee of the Company or any of its Subsidiaries; or (xi) any agreement (whether or policy the benefits of which are contingentnot in writing), arrangement or the terms of which are materially altered, upon the occurrence of a transaction involving Company understanding to do any of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7foregoing.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Columbia Hca Healthcare Corp/), Merger Agreement (Value Health Inc / Ct)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. (a) Since the date of the Company Balance Sheet, the business of the Company and its subsidiaries has been conducted in the ordinary course consistent with past practices (other than the transactions contemplated by this Agreement and the Transaction Option Agreement) and there is not and has not been:
been (ai) any event, occurrence, development or state of circumstances or facts that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company or give rise to a Material Adverse Change (as defined in Section 9.3(c)) on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases which are not, individually or in the aggregate, material in amount from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, (iv) any revaluation by the Company of any of its material assets, other than in the ordinary course of business, or (iiiv) any condition, event or occurrence which, individually or in the aggregate, could reasonably be expected to prevent or materially delay the ability of the Company to consummate the transactions contemplated by this Agreement and the Transaction Option Agreement or perform its obligations hereunder or thereunder.
(b) Except as set forth in Section 3.6(b) of the Company Disclosure Schedule, since the date of the Company Balance Sheet and through the date of this Agreement, there has not been (i) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment security of or permitting to lapse of any Company IP Rights that would be material and adverse to the Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct any of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claimsubsidiaries, (ii) any material change in any method of accountingincurrence, method of accounting principles assumption or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated guarantee by the SEC, Company or (iii) any revaluation of its subsidiaries of any material assets, including, without limitation, writing-off notes or accounts receivable indebtedness for borrowed money other than in the ordinary course of business;
business and in amounts and on terms consistent with past practices, (giii) any loss split, combination or reclassification of any of the Company's or any of its subsidiaries' capital stock, (iv) any granting by the Company or any of its subsidiaries of any increase in compensation or fringe benefits to any Employee, or any payment by the Company or any of its subsidiaries of any severance, termination pay or benefits or bonus to any Employee, or any granting by the Company or any of its subsidiaries of any increase in severance or termination pay, other than in the ordinary course, consistent with past practice, or any entry by the Company or any of its subsidiaries into, or material modification or amendment of, any Employee Agreement, or receipt any agreement the benefits of written notice which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) any labor dispute or any activity or proceeding by a labor union or representative thereof to organize any Employees, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to any Employees, (vi) except as set forth in Section 3.6(b) of the Company Disclosure Schedule any layoffs of Employees or any Employee terminations other than for poor performance or cause, and the Company and its subsidiaries have preserved intact and kept available the services of present Employees in accordance with past practice, (vii) any creation or other incurrence by the Company or any of its subsidiaries of any intention to cancel or otherwise terminate, lien on any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company asset other than in the ordinary course of business consistent with past practices and practices, (viii) any making of any material loan, advance or capital contributions to or investment in any Person other than threatened terminations loans, advances or capital contributions to or investments in its wholly-owned subsidiaries (or advances to employees) in the ordinary course of business consistent with past practices, (ix) any identified Contract where Company has cured damage, destruction or other casualty loss (whether or not covered by insurance) affecting the underlying cause business or assets of the threat and such Contract still remains Company or any of its subsidiaries that has had or could reasonably be expected to have, individually or in full force and effect;
(h) as of the date hereofaggregate, a Material Adverse Effect on the Company, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(ix) any agreement, whether in writing commitment, arrangement or otherwise, undertaking by the Company or any of its subsidiaries to take perform any action described in this Section 2.7(i) through (ix) above.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date set forth in Section 4.08 of the Company Balance SheetDisclosure Schedule or in the Company SEC Reports, since December 31, 2002, the Company and Company Subsidiaries have has conducted their respective businesses in all material respects its business in the ordinary course and there has not occurred: (i) any Company Material Adverse Effect; (ii) any amendments or changes in the certificate of business. Since the date incorporation or bylaws of the Company Balance Sheetor any of its subsidiaries; (iii) any damage to, there destruction or loss of any asset of the Company or any of its subsidiaries, (whether or not covered by insurance) that has not been:
(a) had or is reasonably likely to have a Company Material Adverse Effect on Company;
Effect; (iiv) any change by the Company in its accounting methods, principles or practices; (v) any material change to any Company Stock Option Plans or Company Employee Plans, including the establishment of any new plans or any amendment that extends the extension of coverage under any plan to new groups of employees or other Persons not previously covered; (vi) any restructuring or reorganization of the Company or any of its subsidiaries; (vii) any split, combination or reclassification of any of its capital stock, (ii) stock or any declaration, setting aside issuance or payment the authorization of any dividend on, or issuance of any other distribution (whether in cash, stock or property) securities in respect of, any in lieu of the or in substitution for shares of its capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or ; (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iiiviii) any revaluation of any material of the Company's or any subsidiary's assets, including, without limitation, writing-writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
; (gix) any loss ofsale, pledge, disposition of or encumbrance upon a material amount of property of the Company or of any of its subsidiaries, except in the ordinary course of business and consistent with past practice; (x) any material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability; (xi) any declaration, issuance or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) other than a dividend or distribution by a wholly-owned subsidiary to the Company; or (xii) the creation of any indebtedness for borrowed money or the issuance of any debt securities or the assumption, guarantee (other than guarantees of bank debt of a subsidiary entered into in the ordinary course of business) or endorsement or other accommodation whereby the Company or any of its subsidiaries became responsible for, the obligations of any person, or receipt of written notice the making of any intention to cancel loans or otherwise terminateadvances, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than except in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7practice.
Appears in 2 contracts
Sources: Merger Agreement (Pinnacor Inc), Merger Agreement (Marketwatch Com Inc)
Absence of Certain Changes or Events. Except as (a) Other than the transactions contemplated by this AgreementAgreement and as disclosed in the Company SEC Documents, since from December 31, 2015 until the date of this Agreement, there has not been any Circumstance that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(b) From December 31, 2015 until the date of this Agreement, the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheetconsistent with their past practices, and there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries, other than (whether A) regular quarterly cash dividends of $0.05 per share of Company Common Stock for dividends declared prior to the date of this Agreement, and (B) in cashthe case of any direct or indirect Subsidiary of the Company, pro rata dividends or distributions to its parent entity or entities;
(ii) any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock of the Company or propertyany of its Subsidiaries or any securities convertible into or exercisable for any shares of capital stock of the Company or any of its Subsidiaries (other than pursuant to the cashless exercise of Company Stock Options or the forfeiture or withholding of taxes with respect to Company Stock Options or Company Restricted Stock Units);
(iii) any split, combination, subdivision or reclassification of any capital stock, or any issuance of any other securities in respect of, any in lieu of the or in substitution for shares of capital stock, of the Company or any purchaseof its Subsidiaries;
(iv) any amendment to the certificate of incorporation, redemption bylaws or other acquisition organizational documents of the Company or any of its Subsidiaries;
(v) any incurrence of material Indebtedness for borrowed money or any guarantee of such Indebtedness for another person, or any issue or sale of debt securities, warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except as disclosed in the Company SEC Documents;
(vi) (A) any transfer, lease, license, sale, mortgage, pledge or other disposal or encumbrance of any of the shares Company’s or its Subsidiaries’ property or assets outside of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businessbusiness consistent with past practice with a fair market value in excess of five million dollars ($5,000,000), (iiB) disposing any acquisitions of businesses, whether by merger, consolidation, purchase of property or disclosing assets or otherwise, involving consideration in excess of five million dollars (except as necessary $5,000,000) or (C) any transfer, lease, license, sale, mortgage, pledge or other disposal or encumbrance of any material Company Intellectual Property, other than in the conduct ordinary course of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholebusiness consistent with past practice;
(dvii) (A) any sale, transfer, granting by the Company or other disposition any of its Subsidiaries to any current or former director or officer of the Company or any of its Subsidiaries of any material properties increase in compensation or assets (whether realbenefits, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
practice or as was required under any Company Benefit Plan, (e) (iB) any assumption, guarantee, endorsement granting by the Company or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations any of its Subsidiaries to any person of any other Person other than those of Company rights to severance, retention, change in control or Company Subsidiariestermination compensation or benefits or any material increase therein, or (ii) any making of any loan, advance or capital contribution except with respect to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel new hires and other reimbursable expenses promotions in the ordinary course of business;
business or except as was required under any Company Benefit Plan, (iC) any material Tax election entry into or material change in any Tax election, adoption of any material change Company Benefit Plan or any material amendment of any such material Company Benefit Plan, except as required by Law, (D) any entry into, establishment of or amendment of any collective bargaining agreement or (E) the taking of any action to accelerate the vesting and payment under any collective bargaining agreement or Company Benefit Plan, except as expressly provided in annual Tax accounting period this Agreement or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, Law;
(iiviii) any material change in any method of accounting, the Company’s method of accounting or accounting principles or practicepolicies, except for any such change required by reason of a concurrent change in GAAP or compliance with by Regulation S-X under the applicable requirements of the rules and regulations promulgated Exchange Act, as approved by the SEC, or Company’s independent accountants;
(iiiix) any revaluation settlement of any material assets, including, without limitation, writing-off notes Claims against or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under affecting the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansits Subsidiaries; or
(ix) any agreement, whether in writing or otherwise, to take material modification of any action described in this Section 2.7Company Licenses.
Appears in 2 contracts
Sources: Merger Agreement (EarthLink Holdings Corp.), Merger Agreement (Windstream Holdings, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince December 31, since the date 2002, each of the Company Balance Sheet, Company and the Company Subsidiaries have has conducted their respective businesses in all material respects its business only in the ordinary course of business. Since the date of the Company Balance Sheetand in a manner consistent with past practice and, since such date, there has not beenbeen any:
(a) a Company Material Adverse Effect on CompanyEffect;
(ib) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock amendment or any other securities change to the Certificate of Incorporation or other partnership interests Bylaws or equivalent organizational documents of the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityCompany Subsidiary;
(c) sale, pledge, lease, license, disposition, grant, encumbrance, or authorization for any (i) any disposing sale, pledge, lease, license, disposition, grant or impairment of or permitting to lapse encumbrance, of any material assets of the Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use , including, without limitation, any Intellectual Property Rights licensed from a third party(as defined below) of the Company or any Company Subsidiary, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business and in a manner consistent with past practicespractice;
(d) authorization, declaration, set aside, dividend payment or other distribution, payable in cash, stock, property or otherwise, with respect to any of the capital stock of the Company or any Company Subsidiary;
(e) reclassification, combination, split, subdivision or redemption, purchase or other acquisition, directly or indirectly, of any of the capital stock of the Company or any Company Subsidiary;
(if) acquisition (including, without limitation, by merger, consolidation, or acquisition of stock or assets) of any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than acquisitions of assets for consideration which is not, in the aggregate, in excess of $2,000,000;
(g) incurrence of any indebtedness for borrowed money or issuance of any debt securities or assumption, guarantee, guarantee or endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for of the obligations of any other Person other than those of Company or Company Subsidiariesperson, or any loans or advances made, except for (i) indebtedness incurred in the ordinary course of business and consistent with past practice and (ii) any making other indebtedness with a maturity of not more than one year in a principal amount not, in the case of both (i) and (ii) in the aggregate, in excess of $1,000,000;
(h) waiver of any loanstock repurchase rights, advance acceleration, amendment or capital contribution change in the period of exercisability of options or restricted stock, or the repricing of options granted under the Company Stock Option Plans or authorization of cash payments in exchange for any options granted under any such plans;
(i) increase in, or agreement to increase, the compensation (including base salary, target bonus and other compensation) payable or investment to become payable to its officers or employees, except for increases in accordance with past practices, or the grant of any Personrights to severance or termination pay to, including or the entering into of any employment, consulting, termination, indemnification or severance agreement with, any director, officer or other affiliate employee of Companythe Company or any Company Subsidiary, or the establishment, adoption, entering into or amendment of any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other than advances plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to employees for travel and other reimbursable expenses any amendments to employee benefits plans described in section 3(3) of the ordinary course Employee Retirement Security Act of business1974, as amended (“ERISA”) that may be required by law;
(ij) action to make or change any material Tax election (as defined in Section 3.16 below) or material change in any Tax accounting election, change any material annual accounting period, adopt or change in annual Tax any accounting period or method of Tax accounting (other than as required by applicable laws or regulationsGAAP), file any filing of amended Tax Return (as defined in Section 3.16 below) which amends the Tax Return in any material amended Tax Returnsrespect, enter into any entering into of a closing agreement, settlement of settle any material Tax claim or consent assessment relating to the Company or any Tax claimCompany Subsidiary, any surrendering of surrender any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory limitation period of limitation applicable to any material Tax claimclaim or assessment relating to the Company or any Company Subsidiary, (ii) or take any other action or omit to take any action that would have the effect of increasing the Tax liability, in any material change in respect, of the Company or any method of accountingCompany Subsidiary or Parent;
(k) action taken, method of accounting principles or practice, except for any such change other than as required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, with respect to accounting principles or (iii) any revaluation of any material assetsprocedures, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course any revaluation of businessassets;
(gl) any loss of, acceleration (or receipt of written notice grant of any intention right to cancel acceleration, whether or otherwise terminatenot contingent), any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase amendment or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans any option plan, employee stock plan or agreements or authorization of cash payments in exchange for any Company Stock Options granted under any of such plans, except as specifically required by the terms of such plans or any such agreements or any related agreements in effect as of the date of this Agreement and disclosed in the Company Stock PlansDisclosure Letter;
(m) (i) sale, assignment, lease, termination, abandonment, transfer, authorization to encumber or to otherwise dispose of or grant of any security interest in and to any item of the Company Intellectual Property, in whole or in part, (ii) grant of any license with respect to any Company Intellectual Property, other than license of Company software to customers of the Company or any Company Subsidiary to whom the Company or any Company Subsidiary licenses such Company software in the ordinary course of business, (iii) development, creation or invention of any Intellectual Property jointly with any third party, or (iv) disclosure, or authorization for disclosure, of any confidential Company Intellectual Property, unless such Company Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof; or
(in) any agreementauthorization, whether in writing agreement or otherwise, commitment by the Company or any Company Subsidiary to take do any action of the things described in this Section 2.73.09.
Appears in 2 contracts
Sources: Merger Agreement (Ariba Inc), Merger Agreement (Ariba Inc)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince the Balance Sheet Date, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, business consistent with past practice and there has not been:
(a) any effect, event, or change which has had, or could reasonably be expected to have, a Company Material Adverse Effect on CompanyEffect;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (iib) any material change in any method of accounting, method of accounting principles or practiceaccounting practice by the Company or any Subsidiary, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated of the SEC or in GAAP;
(c) any material revaluation by the SEC, Company or any Subsidiary of a material asset (iii) any revaluation of any material assets, including, without limitation, any material writing down of the value of inventory or material writing-off of notes or accounts receivable receivable);
(d) any transaction or commitment made, or any contract or agreement entered into, by the Company or any Subsidiary relating to its assets or business (including, without limitation, the acquisition, disposition, leasing or licensing of any tangible or intangible assets) or any relinquishment by the Company or any Subsidiary of any contract or other right, in either case, material to the Company and Subsidiary taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement;
(e) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) or other distribution in respect of the Company’s capital stock or any redemption, purchase or other acquisition of any of the Company’s securities;
(f) any split, combination or reclassification of any of the Company’s capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(g) any amendment of any material term of any outstanding security of the Company or any Subsidiary;
(h) any issuance by the Company or any Subsidiary of any notes, bonds or other debt securities or any capital stock or other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities, except for the issuance of any Company Shares pursuant to the exercise of any Options in existence prior to the date hereof;
(i) any material incurrence, assumption or guarantee by the Company or any Subsidiary of any indebtedness for borrowed money other than in the ordinary course of businessbusiness and in amounts and on terms consistent with past practices;
(gj) any loss of, creation or receipt of written notice assumption by the Company or any Subsidiary of any intention to cancel or otherwise terminate, material Lien on any identified Contract that would be reasonably likely, individually material asset(s) (alone or in the aggregate, to be material to Company ) other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectpractice;
(hk) as any making of any loan, advance or capital contributions to or investment in any entity or person other than loans, advances or capital contributions to or investments in any Subsidiary and except for cash advances to employees for reimbursable travel and other reasonable business expenses, in each case made in the ordinary course of business consistent with past practice;
(l) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the date hereofCompany or any Subsidiary which, (i) any increase individually or change in any compensationthe aggregate, benefits has had or bonus paid or made payable would reasonably be expected to any of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyhave a Company Material Adverse Effect, or any other event, change, circumstance or state of facts that has had or is reasonably likely to have a Company Material Adverse Effect;
(m) any material increase in severance the benefits under, or the establishment, material amendment or termination payof, any Benefit Plan covering current or former employees, officers or directors of the Company or any Subsidiary, or any material modification increase in the compensation payable or amendment to become payable to or any other material change in the employment terms for any directors or officers of the Company or any currently effective of its subsidiaries or any other employee earning noncontingent cash compensation in excess of $100,000 per year;
(n) any entry by the Company or any Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any director or officer of the Company or any Subsidiary or entry into any such agreement with any person for a noncontingent cash amount in excess of $100,000 per year or policy outside the benefits ordinary course of which are contingentbusiness;
(o) any material labor dispute, other than routine individual grievances, or the terms of which are materially altered, upon the occurrence of any activity or proceeding by a transaction involving Company labor union or representative thereof to organize any employees of the nature contemplated hereby Company or (ii) any action taken of its subsidiaries, which employees were not subject to acceleratea collective bargaining agreement as of the Balance Sheet Date or any lockouts, amend strikes, slowdowns, work stoppages or change the period of vesting threats thereof by or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Planswith respect to such employees; or
(ip) any agreementauthorization of, whether in writing or otherwiseagreement by the Company or any Subsidiary to take, to take any action of the actions described in this Section 2.74.7, except as expressly contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Kintera Inc), Merger Agreement (Blackbaud Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth in Section 2.9 of the Company Schedule, since the date of the Company Interim Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, Sheet Date there has not been:
, occurred or arisen: (ai) a any event or condition of any character that has had or is reasonably expected to have Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, ; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or ; (iii) any amendment split, combination or reclassification of any material term of the Company's or any of its subsidiaries' capital stock; (iv) any granting by the Company or any of its subsidiaries of any outstanding security;
(c) increase in compensation or fringe benefits or any (i) payment by the Company or any disposing or impairment of or permitting to lapse its subsidiaries of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxesbonus, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated granting by the SEC, Company or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby; (v) entry by the Company or any of its subsidiaries into (x) any licensing or other Contract relating to the use, acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than (1) end-user licenses of commercially available software applications for internal use by the Company in the ordinary course of business consistent with past practice, and (2) commercial licenses of the Company's software in the ordinary course of business consistent with past practice, or (iiy) any action taken amendment or consent with respect to accelerateany material licensing or other Contract relating to the use, amend acquisition or disposition of any Intellectual Property; (vi) any change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under by the Company Stock Plans in its accounting methods, principles or authorization of cash payments practices, except as required by concurrent changes in exchange for GAAP; (vii) any Company Options granted under revaluation by the Company Stock Plansof any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company other than in the ordinary course of business consistent with past practice; or
(viii) entry by the Company or any of its subsidiaries into any Contract filed or required to be filed by the Company with the SEC; (ix) any negotiation or agreement by the Company or any of its subsidiaries to do any of the things described in the preceding clauses (i) any agreement, whether in writing through (viii) (other than negotiations or otherwise, to take any action described in this Section 2.7agreements with Parent regarding the Transactions).
Appears in 2 contracts
Sources: Merger Agreement (Avantgo Inc), Merger Agreement (Avantgo Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Most Recent Balance SheetSheet Date, except as set forth in Schedule 4.5, there has not been:
(a) a Material Adverse Effect on Companyany material change by the Company or its Subsidiary in accounting methods, principles or practices, except as required by Law or by changes in GAAP;
(ib) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether than in cash, stock or property) in respect ofthe Ordinary Course, any of entry by the shares of capital stock, Company or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of its Subsidiary into any material term loan, lease, purchase or sale of any outstanding securityassets, borrowing or capital expenditure;
(c) any (i) any disposing change or impairment development in or affecting the business or operations of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, its Subsidiary taken as a wholewhole that has had, or would reasonably be expected to have, a Material Adverse Effect;
(d) any sale, transfer, declaration or other disposition payment of any material properties dividends or assets (whether realdistributions on or in respect of any of its capital stock or redemption, personal purchase or mixed, tangible or intangible) except in the ordinary course acquisition of business consistent with past practicesits capital stock;
(e) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, 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;
(if) any assumptionmaterial damage, guarantee, endorsement destruction or liability otherwise incurred loss (whether directlyor not covered by insurance) to its property;
(g) acceleration, contingently termination, material modification to or otherwise) for the obligations cancellation of any other Person other than those of Material Contract to which the Company is a party or Company Subsidiaries, or by which it is bound;
(iih) any making adoption of any loanplan of merger, advance consolidation, reorganization, liquidation or capital contribution dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to or investment in the filing of any Person, including bankruptcy petition against it under any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businesssimilar Law;
(i) any material Tax election action by the Company to make, change or material change in rescind any Tax election, amend any material change 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 annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing respect of any material amended Post-Closing Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansPeriod; or
(ij) any agreementcontract to do any of the foregoing, whether in writing or otherwise, to take any action described or omission that would result in this Section 2.7any of the foregoing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Par Petroleum Corp/Co), Purchase and Sale Agreement (Par Petroleum Corp/Co)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince December 31, since the date of 2007, the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects business in the ordinary course Ordinary Course of business. Since the Company’s Business and, since such date and through the date of the Company Balance Sheethereof, there has not been:
occurred: (a) a any Company Material Adverse Effect on Company;
Effect; (ib) any splitamendments to or changes in the Company Charter, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, Company Bylaws or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
Subsidiaries Governance Documents; (c) any (i) any disposing material damage to, destruction or impairment of or permitting to lapse loss of any Company IP Rights that would be material and adverse to asset of the Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct any of its business) to any Person other than representatives of Parent any trade secret Subsidiaries (whether or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
covered by insurance); (d) any salechange by the Company in its accounting methods, transfer, principles or practices with respect to the Company and its consolidated Subsidiaries other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
than those required by GAAP; (e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for revaluation by the obligations Company of any other Person other than those of Company its assets or Company any assets of its consolidated Subsidiaries, including writing down the value of inventory or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-writing off notes or accounts receivable other than in the ordinary course Ordinary Course of business;
the Company’s Business; (f) any sale of a material amount of assets (tangible or intangible) of the Company or any of its Subsidiaries; (g) any loss ofrecalls, field notifications, field corrections or receipt safety alerts with respect to products manufactured by or on behalf of written notice the Company or any of its Subsidiaries; (h) any intention to cancel other action or otherwise terminate, any identified Contract event that would be reasonably likely, individually or in have required the aggregate, consent of Parent pursuant to be material to Company other subsections (iv)(other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause Ordinary Course of the threat Company’s Business), (vii)(A)(1), (xi) or (xiii) of Section 5.1(a) or the authorization of or making any commitment to do such action or event; and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any business practice to materially accelerate the timing or materially increase the amount of sales or change in any compensation, benefits or bonus paid or made payable to any shipments of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company products outside of the nature contemplated hereby Ordinary Course of the Company’s Business and in such a manner so as to cause the products so sold or (ii) any action taken shipped to accelerate, amend be unable to be resold to the end-user customer or change the period otherwise recognized as revenue of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7GAAP.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Medical Optics Inc), Merger Agreement (Abbott Laboratories)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince the Balance Sheet Date, since the date of the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, business consistent with past practice and there has not been:
(a) any effect, event, or change which has had, or would reasonably be expected to have, a Company Material Adverse Effect on CompanyEffect;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (iib) any material change in any method of accounting, method of accounting principles or practiceaccounting practice by the Company or any Subsidiary, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated of the PCAOB, SEC or in GAAP;
(c) any material revaluation by the SEC, Company or any Subsidiary of a material asset (iii) any revaluation of any material assets, including, without limitation, any material writing down of the value of inventory or material writing-off of notes or accounts receivable receivable);
(d) any transaction or commitment made, or any contract or agreement entered into, by the Company or any Subsidiary relating to its assets or business (including, without limitation, the acquisition, disposition, leasing or licensing of any tangible or intangible assets) or any relinquishment by the Company or any Subsidiary of any contract or other right, in either case, material to the Company and Subsidiary taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement;
(e) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) or other distribution in respect of the Company’s capital stock or any redemption, purchase or other acquisition of any of the Company’s securities;
(f) any split, combination or reclassification of any of the Company’s capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(g) any amendment of any material term of any outstanding security of the Company or any Subsidiary;
(h) any issuance by the Company or any Subsidiary of any notes, bonds or other debt securities or any capital stock or other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities, except for the issuance of any Company Shares pursuant to the vesting of any Company RSUs or the exercise of any Company Options in existence prior to the date hereof;
(i) any material incurrence, assumption or guarantee by the Company or any Subsidiary of any indebtedness for borrowed money other than in the ordinary course of businessbusiness and in amounts and on terms consistent with past practices;
(gj) any loss of, creation or receipt of written notice assumption by the Company or any Subsidiary of any intention to cancel or otherwise terminate, material Lien on any identified Contract that would be reasonably likely, individually material asset(s) (alone or in the aggregate, to be material to Company ) other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectpractice;
(hk) as any making of any loan, advance or capital contributions to or investment in any entity or person other than loans, advances or capital contributions to or investments in any Subsidiary and except for cash advances to employees for reimbursable travel and other reasonable business expenses, in each case made in the ordinary course of business consistent with past practice;
(l) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the date hereofCompany or any Subsidiary which, (i) any increase individually or change in any compensationthe aggregate, benefits has had or bonus paid or made payable would reasonably be expected to any of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyhave a Company Material Adverse Effect, or any other event, change, circumstance or state of facts that has had or is reasonably likely to have a Company Material Adverse Effect;
(m) any material increase in severance the benefits under, or the establishment, material amendment or termination payof, any Benefit Plan covering current or former employees, officers or directors of the Company or any Subsidiary, or any material modification increase in the compensation payable or amendment to become payable to or any other material change in the employment terms for any directors or officers of the Company or any currently effective of its subsidiaries or any other employee earning noncontingent cash compensation in excess of $100,000 per year;
(n) any entry by the Company or any Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any director or officer of the Company or any Subsidiary or entry into any such agreement with any person for a noncontingent cash amount in excess of $100,000 per year or policy outside the benefits ordinary course of which are contingentbusiness;
(o) any material labor dispute, other than routine individual grievances, or the terms of which are materially altered, upon the occurrence of any activity or proceeding by a transaction involving Company labor union or representative thereof to organize any employees of the nature contemplated hereby Company or (ii) any action taken of its subsidiaries, which employees were not subject to acceleratea collective bargaining agreement as of the Balance Sheet Date or any lockouts, amend strikes, slowdowns, work stoppages or change the period of vesting threats thereof by or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Planswith respect to such employees; or
(ip) any agreementauthorization of, whether in writing or otherwiseagreement by the Company or any Subsidiary to take, to take any action of the actions described in this Section 2.74.8, except as expressly contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company ------------------------------------ Balance Sheet, Sheet there has not been:
: (ai) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company or any of its subsidiaries of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants independent contractors following their termination pursuant to the terms of their pre-pre- existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of the Company's or any of its subsidiaries' capital stock, (iv) any granting by the Company or any of its subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by the Company or any extension or waiver of the statutory period its subsidiaries of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of practice, or any identified Contract where granting by the Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (v) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9) other than licenses in the ordinary course of business consistent with past practice, (vi) any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, (vii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (iiviii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under revaluation by the Company Stock Plans of any of its assets, including, without limitation, writing down the value of capitalized inventory or authorization writing off notes or accounts receivable other than in the ordinary course of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7business.
Appears in 2 contracts
Sources: Merger Agreement (Palm Inc), Merger Agreement (Extended Systems Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth on Section 3.07 of the Company Disclosure Schedule, since the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents, the Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetconsistent with past practice, and there has not been:
(a) a any Company Material Adverse Effect on Companyor any state of facts, change, development, effect or occurrence that could reasonably be expected to result in a Company Material Adverse Effect;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, Company's or any purchaseof its Subsidiaries' capital stock or any redemption, redemption retirement, acquisition or other acquisition purchase of any of the shares of Company's or any Subsidiary's capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitysecurities;
(c) any (i) any disposing split, reverse split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to of the Company's or any of its Subsidiaries' capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of, or in substitution for, shares of capital stock or other securities of the Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct any of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) (i) any sale, transfer, granting by the Company or other disposition any of its Subsidiaries of any material properties increase in compensation or assets (whether realbenefits, personal or mixed, tangible or intangible) except for normal increases of cash compensation prior to the date of this Agreement in the ordinary course of business consistent (in amount and kind) with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claimpractice, (ii) any material change in payment by the Company or any method of accounting, method its Subsidiaries of accounting principles or practiceany bonus, except for any such change required by reason bonuses made prior to the date of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than this Agreement in the ordinary course of business consistent (in amount and kind) with past practices and other than threatened terminations of practice, in each case to any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofcurrent or former director, officer, employee or consultant, (iiii) any increase granting by the Company or change in any compensation, benefits or bonus paid or made payable of its Subsidiaries to any current or former director, officer, employee or consultant of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or (iv) any material modification entry by the Company or any of its Subsidiaries into, or any amendment of of, or any currently effective supplement to, (A) any employment, deferred compensation, severance, termination termination, employee benefit, loan, indemnification, stock repurchase, stock option, consulting or indemnification agreement similar Contract between the Company or any agreement of its Subsidiaries, on the one hand, and any current or policy former director, officer, employee or consultant of the Company or any of its Subsidiaries, on the other hand, or (B) any Contract between the Company or any of its Subsidiaries, on the one hand, and any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated hereby by this Agreement or the Stockholders Agreement (all such Contracts referred to in this clause (iv), being herein called, collectively, the "Benefit Agreements");
(e) any amendment of, or supplement to, any Company Stock Plan, any Stock Option, any Warrant or any Convertible Note;
(f) any damage, destruction or loss, whether or not covered by insurance, in excess of $25,000 individually or in the aggregate;
(g) any change in financial or tax accounting methods, principles or practices by the Company, except insofar as may have been required by a change in GAAP or Applicable Law;
(h) any tax election that individually or in the aggregate could reasonably be expected to have a Company Material Adverse Effect or a material adverse effect on any of the Company's tax attributes or any settlement or compromise of any material income tax liability;
(i) any revaluation by the Company of any of its material assets;
(j) any entering into any settlement regarding the breach, misrepresentation, infringement or violation of, any Intellectual Property, or any modification of any existing rights with respect thereto;
(k) any incurring, assumption or guaranty of any debt, claim, commitment, obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due (including any Indebtedness), except (A) current liabilities for trade or business obligations incurred in connection with the purchase of goods or services in the ordinary course of business consistent (in amount and kind) with past practice, and (B) any Indebtedness incurred under and pursuant to the Credit Facility;
(l) any subjection to any Lien of any portion of the Company's or any of its Subsidiaries' assets, properties or business (whether tangible or intangible), other than (A) mechanic's, materialmen's, and similar Liens, in each case that are not delinquent or which are being actively contested in good faith by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or its applicable Subsidiary, as the case may be, to the extent required by GAAP, (B) Liens arising under workers' compensation, unemployment insurance, social security, retirement, and similar legislation, in each case that are not delinquent or which are being actively contested in good faith by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or its applicable Subsidiary, as the case may be, to the extent required by GAAP, and (C) statutory Liens with respect to current taxes not yet due and payable (all such Liens under clauses (A) through (C), inclusive, collectively, "Permitted Liens");
(m) any sale, assignment, lease to others or transfer or other disposition of any portion of the Company's or any of its Subsidiaries' assets, except for Inventories sold in the ordinary course of business consistent (in amount and kind) with past practice;
(n) any receipt of any written notice of termination of any Designated Contract (including any Contract that would have constituted a Designated Contract but for the termination thereof prior to the date of this Agreement);
(o) any discharge, cancellation or compromise of any debt, claim, commitment, liability or obligation (including any Indebtedness), or waiver or release of any right of substantial value;
(p) any making of any capital expenditures or commitments therefor in excess of $50,000 individually or in the aggregate;
(i) any making of any capital investment in, any loan to, or any acquisition of, any of the securities of, any other Person (or series of related capital investments, loans and acquisitions involving the same Person or such Person's Affiliates), except for overnight deposits, short-term money market investments, or (ii) any action taken to accelerate, amend acquisition of any entity or change business (whether by the period acquisition of vesting or exercisability of options or restricted stock, the acquisition of all or reprice Company Options granted under the Company Stock Plans a substantial portion of assets, merger or otherwise);
(r) any change or authorization of cash payments any change in exchange for any Company Options granted under the articles of incorporation or bylaws (or similar organizational documents) of the Company Stock Plansor any of its Subsidiaries;
(s) any labor union organizing activity with respect to the Company or any of its Subsidiaries, any actual or threatened employee strikes, work stoppages, slowdowns or lockouts, or any material and adverse change in the Company's or any of its Subsidiaries' relations with its employees, distributors, agents, customers or suppliers;
(t) any payment or agreement to pay any brokerage or finder's fee, or any incurring of any severance pay or retention obligations by reason of this Agreement or any of the transactions contemplated hereby;
(u) any making of any grant of credit to any customer or distributor on terms or in amounts materially more favorable than had been extended to that customer or distributor in the past;
(v) any receipt of any written notice of any condemnation proceedings commenced with respect to any Leased Real Property or written notice as to the proposed commencement of any such proceedings; or
(iw) any agreement, whether in writing or otherwise, to take taking of any action described or knowing omission of the taking of any action that would result in this Section 2.7the occurrence of any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (L 3 Communications Corp), Merger Agreement (Westwood Corp/Nv/)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetSheet through the date hereof, there has not been, accrued or arisen:
(a) a any Material Adverse Effect on the Company;
(ib) any splitacquisition by the Company or any Subsidiary of, combination or reclassification agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing all or substantially all of the assets of a business for an amount in excess of $250,000 or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof; or other acquisition or agreement to acquire all or substantially all of the assets of a business for consideration in excess of $250,000 or any equity securities, or any solicitation of, or participation in, any negotiations with respect to any of the foregoing;
(c) any entry into, amendment or termination by the Company or any of its Subsidiaries of any capital stockContract, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to a joint venture, strategic partnership or alliance, or supply arrangement (iiin each case, other than agreements entered into in the ordinary course of business consistent with past practice) material to the Company and its Subsidiaries, taken as a whole;
(d) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stockstock (other than any distribution, payment or dividend by any of the Company’s Subsidiaries to the Company or to any of the other Company Subsidiaries), or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares Company’s or any of its Subsidiaries’ capital stock or any other securities or other partnership interests of the Company or any options, warrants, calls or rights to acquire any such shares or other securities (except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material repurchase Company Common Stock granted to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practicesits Employee/Service Providers);
(e) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock;
(f) any granting by the Company or any of its Subsidiaries, whether orally or in writing, of any (i) any assumption, guarantee, endorsement increase in compensation or liability fringe benefits payable or otherwise incurred (whether directly, contingently or otherwise) for due to officers of the obligations of any other Person other than those of Company or Company Subsidiaries, any Subsidiary or (ii) any making of any loan, advance material increase in compensation or capital contribution to fringe benefits payable or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent otherwise due to any Tax claim, any surrendering non-officer employees of any right to claim a material refund of Taxes, the Company or any consent to any extension or waiver Subsidiary whose annual base salary is in excess of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company $100,000 other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectpractice;
(h) as of the date hereof, (ig) any increase change by the Company or change in any compensationof its Subsidiaries of severance, benefits termination or bonus paid policies and practices (excluding sales commissions) or made payable to any entry by the Company or any of their executive officers or directorsits Subsidiaries into, or employees earning more than $100,000 in base salary annuallyamendment of, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events);
(iih) any action taken material amendment or termination with respect to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; orMaterial Contract;
(i) any agreementContract entered into by the Company or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any assets or property) or any relinquishment by the Company or any of its Subsidiaries of any Contract or other right, whether in writing each case having a stated contract amount or otherwiseinvolving obligations or entitlements with a value of more than $500,000 in each individual case (other than Contracts with customers, suppliers, distributors and representatives entered into in the ordinary course of business, consistent with past practice);
(j) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP;
(k) any debt, capital lease or other debt or equity financing transaction by the Company or any of its Subsidiaries or entry into any agreement by the Company or any of its Subsidiaries in connection with any such transaction, except for capital leases entered into in the ordinary course of business consistent with past practice which are not, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole;
(l) any grants of any material refunds, credits, rebates or other allowances by the Company or any of its Subsidiaries to any customer, reseller or distributor, in each case, other than in the ordinary course of business consistent with past practice;
(m) any material change in the level of product returns or policies relating to accounts receivable or reserves, bad debts or rights to accounts receivable experienced by the Company or any of its Subsidiaries;
(n) any material restructuring activities by the Company or any of its Subsidiaries, including any material reductions in force, or any lease terminations or restructuring of contracts;
(o) any license or encumbrance of any properties or assets except the license or encumbrance of property or assets which is not material, individually or in the aggregate, to take the business of the Company or any action described of its Subsidiaries;
(p) any loan, advance or capital contribution by the Company or any of its Subsidiaries to, or investment in, any Person other than (i) loans or advances to Employees/Service Providers in this Section 2.7connection with business related travel and expenses, in each case in the ordinary course of business consistent with past practice; (ii) loans, advances or capital contributions or investments by the Company to or in any wholly owned Subsidiary, by any wholly owned Subsidiary in the Company, or by a wholly owned Subsidiary of the Company in any other wholly owned Subsidiary of the Company; or (iii) loans or advances to third parties consistent with past practice that are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole;
(q) any material purchases of fixed assets or other long term assets other than in the ordinary course of business and in a manner consistent with past practice;
(r) any amendment of any material Tax Returns, any adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any closing agreement relating to an Audit, or consent to any waiver of the statutory period of limitations in respect of any Audit;
(s) any material revaluation, or any indication that such a revaluation is required under GAAP, by the Company of any of its assets, including, without limitation, writing down the value of long-term or short-term investments, fixed assets, goodwill, intangible assets, deferred tax assets, or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice;
(t) any significant deficiency or material weakness identified in the system of internal controls utilized by the Company and its Subsidiaries; or
(u) any commencement or settlement of any lawsuit, any overt threat of any lawsuit or other proceeding by the Company or any Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Micron Technology Inc), Merger Agreement (Lexar Media Inc)
Absence of Certain Changes or Events. 5.11.1. Except as expressly contemplated or permitted by this Agreement, and other than the reasonable and customary fees and expenses incurred in connection with the transactions contemplated by this Agreement, since January 29, 2000, the date business of the Company Balance Sheet, Company and Company its Subsidiaries have has been conducted their respective businesses in all material respects in the ordinary course of businessbusiness consistent with past practices, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of related transactions material to the Company or its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practices, and there has not been any event, occurrence or development that, individually or in the aggregate, constitutes or would constitute a Material Adverse Effect on the Company.
5.11.2. Since Without limiting the date generality of the foregoing Section 5.11.1, since January 29, 2000, except as set forth in Section 5.11.2 of the Company Balance SheetDisclosure Schedule, there has not been:
(a) any damage, destruction or loss to any of the assets or properties of the Company or any of its Subsidiaries that, individually or in the aggregate, constitutes a Material Adverse Effect on Companythe Company ;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, capital stock or property) or capital return in respect ofof any shares of the Company's capital stock or any redemption, purchase or other acquisition by the Company or any of the its Subsidiaries of any shares of the Company's capital stock, or any purchaserepurchase, redemption or other acquisition purchase by the Company or any of its Subsidiaries of any of the outstanding shares of capital stock or any other securities of, or other partnership ownership interests in, the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsits Subsidiaries, or (iii) any amendment of any material term of any outstanding securitysecurity of the Company or any of its Subsidiaries;
(c) any sale, assignment, transfer, lease or other disposition, or agreement to sell, assign, transfer, lease or otherwise dispose of, any of the assets of the Company or any of its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practices;
(d) any acquisition (by merger, consolidation, or acquisition of stock or assets) by the Company or any of its Subsidiaries of any corporation, partnership or other business organization or division thereof or any equity interest therein for consideration;
(e) any (i) incurrence of, (ii) guarantee with respect to, or (iii) provision of credit support for, any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to indebtedness by the Company or outside any of its Subsidiaries other than pursuant to (A) the Company Credit Facility in the ordinary course of business or (B) lease financings for equipment used in the operation of the businesses of the Company or any of its Subsidiaries in the ordinary course of business; or any creation or assumption by the Company or any of its Subsidiaries of any material Lien, other than any Permitted Lien, on any material asset;
(f) any material change in any method of accounting or accounting practice (whether for financial accounting or Tax purposes) used by the Company or any of its Subsidiaries;
(i) any employment, deferred compensation, severance or similar agreement entered into or amended by the Company or any of its Subsidiaries and any employee, in each case other than sales commission agreements and product promotional agreements entered into in the ordinary course of business consistent with past practices, (ii) disposing of or disclosing (except as necessary any increase in the conduct compensation payable, or to become payable by it, to any of its business) directors or officers or generally applicable to all or any Person other than representatives category of Parent the Company's or any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementits Subsidiaries' employees, or (iii) any material change to Company’s increase in the coverage or benefits available under any vacation pay, company awards, salary continuation or disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any of the directors or officers of the Company or any Company Subsidiary’s rights of its Subsidiaries or generally applicable to use Intellectual Property Rights licensed from a third partyall or any category of the Company's or any of its Subsidiaries' employees, exceptor (iv) severance pay arrangements made to, for, or with such directors, officers or employees other than, in the case of (iii) through and (iii) above and only with respect to employees who are not officers or directors of the Company or any of its Subsidiaries, increases in the ordinary course of business consistent with past practices and that, in the aggregate, as would have not be resulted in a material to increase in the benefits or compensation expense of the Company and Company Subsidiaries, or any of its Subsidiaries taken as a whole;
(dh) any salerevaluing in any material respect of any of the assets of the Company or any of its Subsidiaries on the Company Financials, transferincluding, without limitation, writing down the value of any assets or inventory or -24- writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices;
(i) any loan, advance or capital contribution made by the Company or any of its Subsidiaries to, or investment in, any Person other disposition than loans, advances or capital contributions, or investments of the Company made in the ordinary course of business consistent with past practices;
(j) any adoption or amendment of any Company Plan;
(k) any waiver, direct or indirect, by the Company or any of its Subsidiaries of (i) any right or rights of material value or (ii) any payment of any material debt, Liability or other obligation owed to the Company or any of its Subsidiaries, except for non-material waivers and payments made in the ordinary course of business consistent with past practices;
(l) any change in or amendment to the Company's or any of its Subsidiaries' certificate of incorporation, by-laws or other organizational documents;
(m) any payment, loan or advance of any amount to or in respect of, or the sale, transfer or lease of any properties or assets (whether real, personal or mixed, tangible or intangible) to, or entering into of any agreement, arrangement or transaction with or on behalf of, any officer, director, or employee of the Company, any of its Subsidiaries, or any Affiliate of any of them, or any business or entity in which the Company, any Subsidiary or any Affiliate of any of them, or relative of any such Person, has any material, direct or indirect, interest, except for (i) directors' fees, (ii) compensation to the officers and employees of the Company (including benefits received by such officers and employees as a result of their participation in Company Plans) in the ordinary course of business consistent with past practices, and (iii) advancement or reimbursement of expenses in the ordinary course of business consistent with past practices;
(e) (in) any assumption, guarantee, endorsement material modification or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment change in any Person, including any director, officer or other affiliate Company Insurance Policy that would result in a diminishment of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businesscoverage under such Company Insurance Policy;
(io) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into acquisition of a closing agreement, settlement of fee simple interest or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxesleasehold or subleasehold interest in, or any consent sale, assignment, disposition, transfer, pledge, mortgage or lease of, any real property owned or leased by the Company or any of its Subsidiaries;
(p) any issuance, sale or disposition of any capital stock or other equity interest in the Company, except upon the valid exercise of Options in accordance with the terms thereof, or any issuance or grant of any options, warrants or other rights to purchase any extension such capital stock or waiver equity interest, or any securities convertible into or exchangeable for such capital stock or equity interest, or any other change in the issued and outstanding capitalization of the statutory period of limitation applicable to any material Tax claim, Company;
(iiq) any material change amendment, alteration or modification in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation terms of any material assetscurrently outstanding options, warrants or other rights to purchase any capital stock or equity interest in the Company or any securities convertible into or exchangeable for such capital stock or equity interest, including, without limitation, writing-off notes or accounts receivable other than any reduction in the ordinary course exercise or conversion price of businessany such rights or securities, any change to the vesting or acceleration terms of any such rights or securities, or any change to terms relating to the grant of any such rights or securities;
(gr) any loss ofclosure, shut down or receipt of written notice other elimination of any intention to cancel of the Company's stores or otherwise terminate, offices or any identified Contract that would be reasonably likely, individually or material change in the aggregatebasic character of its business, properties or assets, other than any store closures effected or proposed to be material to Company other than effected as set forth in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause Section 5.11.2 of the threat and such Contract still remains in full force and effectCompany Disclosure Schedule;
(hs) as of any action that, if it had been taken after the date hereof, would have required the consent of Gart under Section 7.1; and
(it) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described actions specified in this Section 2.75.11.2, except for this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gart Sports Co), Merger Agreement (Oshmans Sporting Goods Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company TEAM Balance Sheet, other than as set forth in TEAM SEC Reports filed after the date of the TEAM Balance Sheet and prior to the date hereof, there has not been:
(a) a Material Adverse Effect on Company;
been (i) any split, combination or reclassification of any capital stockMaterial Adverse Effect with respect to TEAM, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares TEAM’s or any of its subsidiaries’ capital stock, or any purchase, redemption or other acquisition by TEAM or any of its subsidiaries of any of the shares of TEAM’s or its subsidiaries’ capital stock or any other securities of TEAM or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing preexisting stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to CompanyTEAM’s or any Company Subsidiary’s rights of its subsidiaries’ capital stock, (iv) any granting by TEAM or any of its subsidiaries of any increase in compensation or fringe benefits or payment, or any bonus to use Intellectual Property Rights licensed from a third party, exceptany of their directors or employees, in the case any case, in excess of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition 10 percent of any material properties or assets such amount prior to such increase, (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (iiv) any making of any loan, loan or providing any advance to their directors or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxesemployees, or any consent to any extension granting by TEAM or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its subsidiaries of any increase in severance or termination paypay or any entry by TEAM or any of its subsidiaries into, or any material modification or amendment of of, any currently effective employment, severance, termination or indemnification agreement Contract or any agreement or policy Contract the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company TEAM of the nature contemplated hereby hereby, (vi) any material change or alteration in the policy of TEAM or its subsidiaries relating to the granting of stock options or other equity compensation to their directors, employees and consultants, (vii) entry by TEAM or any of its subsidiaries into, or material modification, amendment or cancellation of, any licensing or other agreement with regard to the use, acquisition or licensing of any material Intellectual Property other than licenses, assignment agreements, or other similar Contracts entered into in the ordinary course of business consistent with past practice, (viii) entry by TEAM or any of its subsidiaries into, or material modification, amendment or cancellation of, any material Contract, (ix) any material change by TEAM in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, (x) any material revaluation by TEAM or any of its subsidiaries of any of their material assets including writing off notes or accounts receivable other than in the ordinary course of business, or (iixi) any action taken material changes in the ability of the officers of TEAM to accelerate, amend or change make the period certifications required pursuant to Sections 302 and 906 of vesting or exercisability the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.72002.
Appears in 2 contracts
Sources: Merger Agreement (Team America Inc), Merger Agreement (Vsource Inc)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince January 1, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet2002, there has not been:
: (ai) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares capital stock of capital stockthe Company or any of its Subsidiaries, or any purchase, redemption or other acquisition by the Company of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities securities, except for (A) repurchases or the redemption of Company Exchangeable Preferred Stock and (B) repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsContracts, or (iii) any amendment split, combination or reclassification of any material term of the capital stock of the Company or any of its Subsidiaries, (iv) (A) any granting by the Company or any of its Subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for increases of or permitting to lapse of any Company IP Rights that would be material cash compensation and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except option grants made in the ordinary course of business consistent with past practices;
practice or as required under existing Contracts, (e) (iB) any assumption, guarantee, endorsement payment by the Company or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations any of its Subsidiaries of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
practice or as required under existing Contracts, or (h) as of the date hereof, (iC) any increase granting by the Company or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its Subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy other currently effective Contract the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (v) any entry by the Company or any of its Subsidiaries into any licensing or other Contracts with regard to the acquisition or disposition of any Intellectual Property, other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing Contract filed or required to be filed by the Company with the SEC, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or applicable law, or (iivii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under revaluation by the Company Stock Plans of any of its assets (including, without limitation, writing down the value of capitalized inventory or authorization writing off notes or accounts receivable in an amount greater than Fifty Thousand Dollars ($50,000) in the aggregate) or any sale of cash payments in exchange for any Company Options granted under assets of the Company Stock Plans; or
(i) any agreement, whether other than in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Synopsys Inc), Merger Agreement (Insilicon Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since disclosed in ------------------------------------ the SEC Documents filed and publicly available prior to the date of this Agreement (the Company Balance Sheet"Filed SEC Documents"), Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheetsince December 31, 1998 there has ------------------- not been:
(a) a Material Adverse Effect on Company;
been (i) any splitmaterial adverse change in the business, combination financial condition or reclassification results of any capital stockoperations of ▇▇▇▇▇▇▇ and its Subsidiaries, taken as a whole, (ii) any destruction or loss of (whether or not covered by insurance) any property, asset or right that has had or is likely to have a ▇▇▇▇▇▇▇ Material Adverse Effect, (iii) any authorization or issuance by ▇▇▇▇▇▇▇ of any of its capital stock or the issuance of any debt security or other evidence of Indebtedness of ▇▇▇▇▇▇▇ or any of its Subsidiaries, (iv) any redemption or other acquisition by ▇▇▇▇▇▇▇ of any of its capital stock or by ▇▇▇▇▇▇▇ or any of its Subsidiaries of any of their debt securities or other evidences of Indebtedness, or any payment made with respect to any of the foregoing (other than any regular, periodic payment of interest made with respect to a debt security or other evidence of Indebtedness), (v) any declaration, setting aside or payment of any dividend on, or other distribution or payment (whether in cash, capital stock or propertyotherwise) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any optionsof ▇▇▇▇▇▇▇, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iiivi) any amendment of any material term of any outstanding security;
(c) any (i) any disposing disposal or impairment of or permitting to lapse of any Company IP Rights that would be ▇▇▇▇▇▇▇ Intellectual Property, (vii) any Lien (other than a Permitted Lien) incurred on any material and adverse property, assets or rights of ▇▇▇▇▇▇▇ or any of its Subsidiaries, (viii) any incurrence by ▇▇▇▇▇▇▇ or any of its Subsidiaries of any liability which has had or is likely to Company have a ▇▇▇▇▇▇▇ Material Adverse Effect, (ix) any incurrence of Indebtedness or any guarantee by ▇▇▇▇▇▇▇ or any of its Subsidiaries of any liability of any other person or entity outside of the ordinary course of business, (iix) disposing to the knowledge of ▇▇▇▇▇▇▇, any development with respect to regulatory approval of any products of ▇▇▇▇▇▇▇ or disclosing (except as necessary in the conduct any of its businessSubsidiaries which has had or is likely to have a ▇▇▇▇▇▇▇ Material Adverse Effect, (xi) to the knowledge of ▇▇▇▇▇▇▇, any Person other than representatives development with respect to relationships with any contract manufacturer or contract research organization with which ▇▇▇▇▇▇▇ or any of Parent its Subsidiaries has a business relationship which has had or is likely to have a ▇▇▇▇▇▇▇ Material Adverse Effect or (xii) any trade secret change in ▇▇▇▇▇▇▇' Tax accounting methods, any new election made with respect to Taxes, any modification or other Intellectual Property Rights not theretofore a matter revocation of public knowledge any existing election made with respect to any party that is not subject to a nondisclosure or similar agreementTaxes, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, settlement or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7matter.
Appears in 2 contracts
Sources: Merger Agreement (Shire Pharmaceuticals Group PLC), Merger Agreement (Roberts Pharmaceutical Corp)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince March 31, since the date 2013, (i) there has not been any change, effect, event, occurrence or state of facts that has had or would reasonably be expected to have a Material Adverse Effect, (ii) the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since business consistent with past practice and (iii) through the date of the Company Balance Sheetthis Agreement, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or making of any other distribution (whether in cash, stock or property) with respect to, any capital stock or other equity interest of the Company or any of its Subsidiaries, except for (A) regular quarterly cash dividends on Company Common Stock of $0.10 per share and (B) any dividend or distribution by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary thereof;
(ii) any split, combination or reclassification of any capital stock of the Company or any issuance or the authorization of any issuance of any other securities in respect of, any in lieu of the or in substitution for shares of capital stock, or stock of the Company;
(iii) any purchase, repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities or other partnership equity interests of the Company or any optionsof its Subsidiaries or any rights, warrants, calls warrants or rights options to acquire any such shares or other securities except for repurchases from employees or consultants following their termination equity interests, other than (A) the acquisition by the Company of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of the Company Stock Options, (B) the withholding of shares of Company Common Stock to satisfy tax obligations with respect to awards granted pursuant to the terms Company Stock Plans, (C) the acquisition by the trustee of their pre-existing stock option or purchase agreementsthe Company 401(k) Plan of shares of Company Common Stock in order to satisfy participant investment elections under the Company 401(k) Plan, or (iiiD) the acquisition by the Company of Company Stock Options and shares of Company Restricted Stock in connection with the forfeiture of such awards, (E) the acquisition by the Company of Company Common Stock in connection with the exercise of rights under the ESPP and (F) the acquisition by the Company of Company Common Stock pursuant to Company Common Stock repurchase plans approved by the Board of Directors of the Company;
(1) any amendment grant to any present or former director, executive officer or employee of the Company of any material term of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businessbenefits, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations practice with respect to non-executive officer employees, (2) any grant to any present or former director, executive officer or employee of the Company of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any material increase in severance or termination pay, other than in the ordinary course of business consistent with past practice with respect to non-executive officer employees, (3) any entry by the Company into any employment, consulting, severance or termination agreement with any director, executive officer or employee of the Company, other than agreements entered into in the ordinary course of business consistent with past practice with an individual with annual target cash compensation not in excess of $250,000, (4) any loan or advance of money or other property by the Company or any of its Subsidiaries to any present or former director, executive officer or employee (other than advances of business and travel expenses) or (5) any grant of any equity or equity-based awards;
(v) any material change in accounting methods, principles or practices by the Company or any of its Subsidiaries affecting the consolidated assets, liabilities or results of operations of the Company, except as required (A) by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (B) by Law, including Regulation S‑X under the Securities Act;
(vi) any material tax election made by the Company or any of its Subsidiaries, any closing agreement, settlement or compromise of any proceeding with respect to any material tax claim or assessment relating to the Company or any of its Subsidiaries or the surrender of any right to claim a material refund of taxes, other than in the ordinary course of business consistent with past practice;
(vii) any amendment to the Company Certificate of Incorporation or the Company Bylaws;
(viii) any settlement of any material claim, investigation, proceeding or litigation (or any material portion thereof), in each case made or pending against the Company or any of its Subsidiaries;
(ix) entry into or material modification or amendment of any currently effective employmentexisting Company Regulatory Agreement, severanceexcept as required by applicable Law;
(x) any adoption or entry into a plan of complete or partial liquidation, termination dissolution, restructuring, recapitalization or indemnification agreement other reorganization or any agreement merger or policy consolidation by the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansCompany; or
(ixi) any agreement, whether in writing commitment or otherwise, agreement to take any action described in this Section 2.7of the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (Fidelity National Financial, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, Sheet there has not been:
: (ai) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company or any of its subsidiaries of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of the Company's or any of its subsidiaries' capital stock, (iv) any granting by the Company or any of its subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by the Company or any extension or waiver of the statutory period its subsidiaries of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of practice, or any identified Contract where granting by the Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (v) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9) other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice (collectively, "ORDINARY COURSE AGREEMENTS"), (vi) any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, (vii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (iiviii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under material revaluation by the Company Stock Plans of any of its assets, including, without limitation, writing down the value of capitalized inventory or authorization writing off notes or accounts receivable other than in the ordinary course of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7business.
Appears in 2 contracts
Sources: Merger Agreement (Excite Inc), Merger Agreement (At Home Corp)
Absence of Certain Changes or Events. Except Since December 31, 2012 to the date hereof, there has not been any Company Material Adverse Effect. Since December 31, 2013 to the date hereof, except as expressly contemplated by this Agreement, since the date of (a) the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course and in a manner consistent with past practice, (b) the Company has not taken or permitted any of business. Since the date its Subsidiaries to take any of the following actions: (i) declare, set aside or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of the Shares (other than dividends or other distributions from any Subsidiary to the Company Balance Sheetor to another wholly-owned Subsidiary), or redeem, purchase or otherwise acquire, directly or indirectly, any of its shares or other securities (other than in connection with the settlement of any Company Share Awards in accordance with the appropriate Share Incentive Plans and this Agreement) or (ii) adopt, pass any resolution to approve or make any petition or similar proceeding or order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of any Group Company (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company), (c) there has not been any material change in any method of accounting or accounting practice by the Company or any of its Subsidiaries, (d) other than in the ordinary course of business and consistent with past practice (including with respect to amount and timing), there has not been:
(a) a Material Adverse Effect on Company;
(i) been any split, combination material increase in the compensation or reclassification of any capital stockbenefits payable or to become payable to its officers or key employees, (iie) any declaration, setting aside or payment the Group Companies have not incurred Indebtedness in excess of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) US$70,000,000 in the aggregate, as would not be material (f) none of the Group Companies has (i) acquired or made any capital contributions to Company and Company Subsidiaries, taken as a whole;
or investments in any business or entity or (dii) acquired any sale, transfer, or other disposition assets outside of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss ofno receiver, trustee, administrator or receipt of written notice other similar person has been appointed in relation to the affairs of any intention to cancel Group Company or otherwise terminate, its property or any identified Contract that would be reasonably likely, individually or in the aggregate, to be part thereof material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7and its Subsidiaries taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Alibaba Group Holding LTD), Merger Agreement (AutoNavi Holdings LTD)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since From the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since Sheet through the date of the Company Balance Sheetthis Agreement, there has not been, accrued or arisen:
(a) a any Material Adverse Effect on the Company;
(ib) any splitacquisition by the Company or any Subsidiary of, combination or reclassification agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company;
(c) any capital stockContract, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance;
(iid) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumptionsplit, guarantee, endorsement combination or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations reclassification of any other Person other than those of Company the Company’s or Company any of its Subsidiaries, or (ii) any making of any loan, advance or ’ capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessstock;
(if) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required granting by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, the Company or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claimits Subsidiaries, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually whether orally or in the aggregatewriting, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance compensation or termination pay, fringe benefits or any material modification payment by the Company or amendment any of its Subsidiaries of any bonus or any change by the Company or any of its Subsidiaries of severance, termination or bonus policies and practices or any entry by the Company or any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events;
(iig) any action taken amendment, termination or consent with respect to accelerateany Company Material Contract, amend or change the period Contract required to be disclosed in Section 3.8 of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans Disclosure Letter, Company Government Contract or authorization of cash Company Government Subcontract;
(h) entry into any material customer Contract that contains any material non-standard terms, including but not limited to, non-standard discounts, provisions for unpaid future deliverables, non-standard service requirements, future royalty payments in exchange for any Company Options granted under the Company Stock Plans; orother than as is consistent with past practice, non-standard warranties or non-standard indemnification obligations;
(i) any agreementmaterial change by the Company in its accounting methods, whether principles or practices, except as required by concurrent changes in writing GAAP;
(j) any debt, capital lease or otherwiseother debt or equity financing transaction by the Company or any of its Subsidiaries or entry into any agreement by the Company or any of its Subsidiaries in connection with any such transaction, except for capital lease and receivables financings entered into in the ordinary course of business consistent with past practice which are not individually or in the aggregate material to the Company and its Subsidiaries taken as a whole;
(k) any grants of any material refunds, credits, rebates or other allowances by the Company to any end user, customer, reseller or distributor, in each case, other than in the ordinary course of business consistent with past practice;
(l) any material change in the level of product returns or factors influencing accounts receivable or warranty reserves (including any material change in warranties provided by the Company) experienced by the Company or any of its Subsidiaries;
(m) any material restructuring activities by the Company or any of its Subsidiaries, including any material reductions in force, lease terminations, restructuring of employee benefits or similar actions;
(n) any sale, lease, license, encumbrance or other disposition of any properties or assets except the sale, lease, license or disposition of property or assets which are not material, individually or in the aggregate, to take the business of the Company or the licenses of current Company Products, in each case, in the ordinary course of business and in a manner consistent with past practice;
(o) any action described loan or extension of credit by the Company or any of its Subsidiaries to any Person other than in this Section 2.7the ordinary course of business and in a manner consistent with past practice;
(p) any material purchases of fixed assets, spares or other long-term assets other than in the ordinary course of business and in a manner consistent with past practice;
(q) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(r) any material revaluation, or any indication that such a revaluation was merited under GAAP, by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory, spares, long term or short-term investments, fixed assets, goodwill, intangible assets, deferred tax assets, or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date set forth in Section 3.07 of the Company Balance SheetDisclosure Schedule, since December 31, 2006, the Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetconsistent with their past practice, (a) there has not been:
(a) a been any Material Adverse Effect on Company;
Change, and (b) from such date until the date hereof there has not been (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any capital stock of the Company or any of its Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the shares of capital stockCompany to its stockholders, or (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities of the Company or other partnership interests any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination securities, including pursuant to the terms of their pre-existing stock option or purchase agreementsCompany’s share repurchase program, or (iii) any amendment split, combination or reclassification of any material term capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any outstanding security;
issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (civ) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or independent contractor, of the Company or any of its Subsidiaries (iall such individuals, collectively, the “Company Personnel”) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company increase in compensation, bonus or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret fringe or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementbenefits, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
practice or as was required under any Company Benefit Agreement or Company Benefit Plan, (e) (iB) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for granting by the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent its Subsidiaries to any Tax claim, any surrendering Company Personnel of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii1) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay or (2) any right to receive any severance or termination pay, (C) any entry by the Company or any of its Subsidiaries into, or any material modification amendments of, (1) any Company Benefit Agreement or amendment of (2) any currently effective employment, severance, termination or indemnification agreement or Contract with any agreement or policy Company Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the a nature contemplated hereby by this Agreement, (D) the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date hereof, or (iiE) any action taken to acceleratethe adoption, amend amendment or change the period termination of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) Benefit Plan or entry into any agreement, plan or arrangement to do any of the foregoing, (v) any material damage, destruction or loss, whether or not covered by insurance, (vi) any change in writing accounting methods, principles or otherwisepractices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP, (vii) any material Tax election or any settlement or compromise of any material income Tax liability or (viii) any sales of real estate or restaurants, or any Contract with respect to take any action described in this Section 2.7such sale.
Appears in 2 contracts
Sources: Merger Agreement (Darden Restaurants Inc), Merger Agreement (Rare Hospitality International Inc)
Absence of Certain Changes or Events. Except Since December 31, 2003, except as contemplated by this AgreementAgreement or any other Transaction Agreement or as disclosed in any Company SEC Report or set forth in Schedule 3.09, since the date of the Company Balance Sheet, Company and Company the Subsidiaries have conducted their respective businesses in all material respects the Ordinary Course and there has not been (a) any event or events having, or reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (b) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business. Since the date of business consistent with past practice, (c) any entry by the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) or any split, combination Subsidiary into any commitment or reclassification transaction except in the ordinary course of any capital stockbusiness and consistent with past practice, (iid) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of the shares of capital stock, Company or any purchaseredemption, redemption purchase or other acquisition of any of the shares its securities, (e) any split, combination or reclassification of any of its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or other partnership interests in substitution for shares of its capital stock, (f) except insofar as may have been disclosed in the SEC Filings or required by a change in GAAP, any optionschange in accounting methods, warrantsprinciples or practices, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iiig) any amendment making or revocation of any material term Tax elections or any settlement or compromises of any outstanding security;
material federal, state, foreign or local Tax liability or any waivers or extensions of the statute of limitations in respect of such Taxes, (ch) any making of loans, advances or capital contributions to, or investments in, any Person or payment of any fees or expenses to any of the Company's shareholders or any Affiliate of any of such shareholders; (i) any disposing mortgage or impairment of or permitting to lapse pledge of any Company IP Rights that would be material and adverse to Lien of any of its assets, or acquisition of any assets or sale, assignment, transfer, conveyance, lease or other disposition of any assets of the Company or outside any Subsidiary, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business, (iij) disposing any discharge or satisfaction of any Lien, or disclosing payment of any obligation or liability (fixed or contingent), except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementOrdinary Course and which, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to the Company and Company Subsidiaries, its Subsidiaries taken as a whole;
; (dk) any salecancellation or compromises of any debt or claim or amendment, transfercancellation, termination relinquishment, waiver or release of any contract or right except in the Ordinary Course and which, in the aggregate, would not be material to the Company and its Subsidiaries taken as a whole; (l) any material delay in making any capital expenditure for an approved capital project as set forth in the Company's budget in excess of $25,000 individually or $100,000 in the aggregate, or the making or commitment to make any capital expenditures or capital additions or betterments in excess of $100,000 individually or $250,000 in the aggregate; (m) any incurrence of any indebtedness for borrowed money in an amount in excess of $25,000 in the aggregate; (n) any grant of any license or sublicense of any rights under or with respect to any Intellectual Property, other disposition than pursuant to customer contracts entered into in the Ordinary Course; (o) any institution or settlement of any material properties Legal Proceeding; (p) other than pursuant to the contracts referred to in Section 3.11, any increase in or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations establishment of any other Person other than those of Company or Company Subsidiariesbonus, or insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes the granting of stock options, stock appreciation rights, performance awards, or accounts receivable restricted stock awards), stock purchase or other than employee benefit plan, or any other increase in the ordinary course of business;
(g) any loss of, compensation payable or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made become payable to any of their executive officers or directorskey employees of the Company or any Subsidiary, except for salary increases and benefit accruals in the Ordinary Course, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or (q) any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described do anything set forth in this Section 2.73.09.
Appears in 2 contracts
Sources: Merger Agreement (Daleen Technologies Inc), Merger Agreement (Behrman Capital Ii Lp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, Sheet there has not been:
: (a) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, repurchase for value or redemption by the Company or other acquisition any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities its Subsidiaries except for repurchases from employees or consultants Employees following their termination of employment pursuant to the terms of their applicable pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company or outside of the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partyof its Subsidiaries’ capital stock, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, granting by the Company or other disposition any of its Subsidiaries of any material properties or assets (whether realindividually or in the aggregate) increase in compensation or fringe benefits, personal or mixed, tangible or intangible) except for normal increases of cash compensation in the ordinary course of business consistent with past practices;
practice (e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those to directors or officers of the Company), or any payment by the Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing its Subsidiaries of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, whether individually or in the aggregate) bonus, to be material to Company other than except for bonuses made in the ordinary course of business consistent with past practices and practice (other than threatened terminations of any identified Contract where Company has cured the underlying cause to directors or officers of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyCompany), or any granting by the Company or any of its Subsidiaries of any material (whether individually or in the aggregate) increase in severance or termination pay, pay or any entry by the Company or any of its Subsidiaries into any material modification (whether individually or amendment of any currently effective in the aggregate) employment, severance, termination or indemnification agreement agreement, (e) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or policy disposition of any material Intellectual Property (as defined in Section 2.7(a)(i)), other than non-exclusive license, supply and distribution agreements entered into in the benefits ordinary course of which are contingentbusiness consistent with past practice, (f) any material (whether individually or in the terms aggregate) amendment or consent with respect to any Company Material Contract in effect since the date of which are materially alteredthe Company Balance Sheet, upon (g) any material change by the occurrence of a transaction involving Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or (h) any material revaluation by the Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7its assets.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Agreement and Plan of Reorganization (McData Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date set forth in Section 3.07 of the Company Balance SheetDisclosure Schedule, since December 31, 2007, the Company and Company its Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheetconsistent with their past practice, (a) there has not been:
(a) a been any Material Adverse Effect on Company;
Change, and (b) from such date until the date hereof there has not been (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any capital stock of the Company or any of its Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the shares of capital stockCompany to its stockholders, or (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of capital stock or any other securities of the Company or other partnership interests any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination securities, including pursuant to the terms of their pre-existing stock option or purchase agreementsCompany’s share repurchase program, or (iii) any amendment split, combination or reclassification of any material term capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any outstanding security;
issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (civ) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or independent contractor, of the Company or any of its Subsidiaries (iall such individuals, collectively, the “Company Personnel”) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company increase in compensation, bonus or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret fringe or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementbenefits, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
practice or as was required under any Company Benefit Agreement or Company Benefit Plan, (e) (iB) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for granting by the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent its Subsidiaries to any Tax claim, any surrendering Company Personnel of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii1) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay or (2) any right to receive any severance or termination pay, (C) any entry by the Company or any of its Subsidiaries into, or any material modification amendments of, (1) any Company Benefit Agreement or amendment of (2) any currently effective employment, severance, termination or indemnification agreement or Contract with any agreement or policy Company Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the a nature contemplated hereby by this Agreement, (D) the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date hereof, or (iiE) any action taken to acceleratethe adoption, amend amendment or change the period termination of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) Benefit Plan or entry into any agreement, plan or arrangement to do any of the foregoing, (v) any material damage, destruction or loss, whether or not covered by insurance, of any material asset of the Company or any of its Subsidiaries, (vi) any change in writing accounting methods, principles or otherwisepractices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP, (vii) any material Tax election or any settlement or compromise of any material income Tax liability or (viii) any sales of real estate or restaurants, or any Contract with respect to take any action described in this Section 2.7such sale.
Appears in 2 contracts
Sources: Merger Agreement (Independent Brewers United, Inc.), Merger Agreement (Pyramid Breweries Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth on Schedule 3.6 of the Disclosure Schedules, since December 31, 2013 through the date hereof, there has not been any:
(a) change in the Company’s or any of its Subsidiary’s authorized or issued capital stock; grant of any stock option or right to purchase shares of capital stock of the Company Balance Sheetor any Subsidiary of the Company; issuance of, or commitment to issue, any shares of capital stock or any security convertible into or exchangeable for such capital stock; grant of any registration rights; purchase, redemption, retirement or other acquisition by the Company and or any Subsidiary of the Company of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(b) amendment to any Organizational Documents of the Company or any Subsidiary of the Company;
(c) Material Adverse Change to the Company or its Business;
(d) adoption of or change in any Tax or other accounting methods, principles or practices or change in any annual Tax accounting period; making of or change in any Tax election; settlement or compromise of any claim, notice, audit report or assessment in respect of Taxes; filing of any amended Tax Return; entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(e) revaluation of any of the assets of the Company or its Subsidiaries have conducted their respective businesses in all material respects or relating to the Business, including, without limitation, writing off notes or accounts receivable, except in the ordinary course of business. Since ;
(f) any material damage, destruction, abandonment or loss (whether or not covered by insurance) adversely affecting any of the date assets of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Companyor its Subsidiaries or the Business;
(g) cancellation of any Indebtedness or waiver or release of any material right or claim of the Company or its Subsidiaries or relating to the Business;
(h) (i) any split, combination hiring or reclassification termination of any capital stockemployee, consultant or director, (ii) any declarationpayment, setting aside announcement, promise or payment grant, whether oral or in writing, of any dividend onincrease in or establishment of (as applicable) any wages, base pay, fees, salaries, compensation, bonuses, incentives, deferred compensation, pensions, severance or other distribution (whether in cashtermination payments, stock retirement, profit sharing, fringe benefits, equity or property) in respect ofequity-linked awards, any of the shares of capital stockemployee benefit plans, or any purchaseother form of compensation or benefits payable by the Company or its Subsidiaries, redemption including without limitation, any increase or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination change pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing Plan (except as necessary in the conduct of its business) required by any applicable Regulation or, with respect to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementsalary increases for non-executive employees, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practicespractice), or (iii) entry into, adoption, termination or amendment of any Company Plan;
(e) (i) any assumptionadverse change in employee relations which has or is reasonably likely to have a material effect on the productivity, guaranteethe financial condition, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for results of operations of the obligations of any other Person other than those of Company or its Subsidiaries or the relationships between the employees of the Company or its Subsidiaries and the management of the Company or any of its Subsidiaries;
(j) entry into, or (ii) amendment, cancellation or termination of, any making Contract, Lease or Permit to which the Company or its Subsidiaries is a party involving a total remaining commitment by or to the Company or any Subsidiary of the Company of at least $25,000, including, without limitation, any loanemployment, advance consulting, distribution, dealer, sales representative, joint venture, credit or capital contribution to or investment in any Personsimilar agreement, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses except in the ordinary course of business;
(ik) any material Tax election mortgage, pledge or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing Encumbrance of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver assets of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles Company or practiceits Subsidiaries, except for purchase money mortgages arising in the ordinary course of business;
(l) sale, assignment or transfer of any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements assets of the rules and regulations promulgated by the SECCompany or its Subsidiaries, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(gm) any loss of, or receipt transfer of written notice the registration of any intention Business Domain Names or failure to cancel or otherwise terminatetimely renew the registration of any Business Domain Names, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectbusiness;
(hn) as incurrence of Indebtedness by the date hereofCompany or its Subsidiaries for borrowed money or commitment to borrow money entered into by the Company or any of its Subsidiaries, made or agreed to be made by the Company or any of its Subsidiaries, or indebtedness for borrowed money guaranteed by the Company or any of its Subsidiaries;
(io) incurrence by the Company or any of its Subsidiaries of Liabilities, except Liabilities incurred in the ordinary course of business or under this Agreement or the incurrence of Transaction Expenses, or increase or change in any compensationassumptions underlying or methods of calculating, benefits any doubtful account contingency or bonus paid other reserves of the Company and its Subsidiaries;
(p) payment, discharge or made payable to satisfaction of any Liabilities of the Company or any of their executive officers its Subsidiaries other than in the ordinary course of business;
(q) capital expenditures relating to the Business, execution of any Lease to which the Company or directorsany of its Subsidiaries is a party or incurrence of any obligations to make any capital expenditures or execute any Lease, in each case, involving a total remaining commitment by the Company and its Subsidiaries of at least $25,000;
(r) failure to pay or employees earning more satisfy when due any material Liability of the Company or any of its Subsidiaries, except in the ordinary course of business;
(s) failure of the Company and its Subsidiaries to operate the Business in the ordinary course;
(t) failure to maintain any Source Code, data or other information related to the Business (including any records of images, art, photographs or similar content posted on and/or removed from the Company’s website prior to the Closing Date) other than $100,000 in base salary annuallya manner consistent with past practice;
(u) disposition, sale, transfer, assignment, Encumbrance, pledge, license (except in the ordinary course of business), abandoning, dedicating to the public, failure to maintain or permitting to lapse any Company Intellectual Property, or any increase in severance disposition or termination pay, or disclosure to any material modification or amendment Person of any currently effective employmentCompany Intellectual Property not theretofore a matter of public knowledge, severance, termination or indemnification agreement or any agreement or policy in each case other than in the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansordinary course consistent with past practice; orand
(iv) any agreement, whether in writing oral or otherwisewritten, by the Company or any of its Subsidiaries to take do any action of the things described in this Section 2.7the preceding clauses (a) through (u) other than as expressly provided for herein.
Appears in 1 contract
Sources: Merger Agreement (Demand Media Inc.)
Absence of Certain Changes or Events. Except Since December 31, 2003 and except as contemplated by otherwise disclosed in the Company SEC Reports filed and publicly available prior to the date of this Agreement, since the date each of the Company Balance Sheet, Company and the Company Subsidiaries have has conducted their respective businesses in all material respects its business only in the ordinary course of business. Since the date of the Company Balance Sheetand in a manner consistent with past practice and, since such date, there has not beenbeen any:
(a) a Company Material Adverse Effect on Companythrough the date of this Agreement;
(ib) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock amendment or any other securities change to the Certificate of Incorporation or other partnership interests Bylaws or equivalent organizational documents of the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityCompany Subsidiary;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businesssale, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreementpledge, lease, license, disposition, grant, encumbrance, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) authorization for any sale, transferpledge, lease, license, disposition, grant or other disposition encumbrance, of any material properties or assets (whether realof the Company excluding any Company Intellectual Property, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(id) authorization, declaration, set aside, dividend payment or other distribution, payable in cash, stock, property or otherwise, with respect to any material Tax election of the capital stock of the Company or material change in any Tax electionCompany Subsidiary;
(e) reclassification, any material change in annual Tax accounting period combination, split, subdivision or method of Tax accounting redemption, purchase or other than as required by applicable laws acquisition, directly or regulationsindirectly, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement the capital stock of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, the Company or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, Company Subsidiary except for any such change required by reason purchases or acquisition of a concurrent change in GAAP or compliance with capital stock pursuant to agreements under which the applicable requirements of Company has the rules and regulations promulgated by the SEC, or option to repurchase such shares;
(iiif) any revaluation of any material assets, acquisition (including, without limitation, writing-off notes by merger, consolidation, or accounts receivable acquisition of stock or assets) of any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than acquisitions of assets for consideration which is not, in the aggregate, in excess of $100,000;
(g) incurrence of any indebtedness for borrowed money (other than accounts payable in the ordinary course of business;
(g) or issuance of any loss ofdebt securities or assumption, guarantee or endorsement of the obligations of any person, or receipt of written notice of any intention to cancel loans or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectadvances made;
(h) as waiver of the date hereofany stock repurchase rights involving Company Stock with a market value in excess of $100,000, acceleration (i) or grant of any increase right to acceleration, whether or not contingent), amendment or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of exercisability or the vesting or exercisability schedule of options or restricted stock, or reprice Company Options the repricing of options granted under the Company Stock Option Plans or authorization of cash payments in exchange for any Company Options options granted under any such plans (excluding any net exercise provisions under the Company Stock Option Plans);
(i) increase in, or agreement to increase, the compensation (including base salary, target bonus and other compensation) payable or to become payable to its officers or employees, except for increases in accordance with past practices, or the grant of any rights to severance or termination pay to, or the entering into of any employment, consulting, termination, or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary who earns at least $50,000, or the establishment, adoption, entering into or amendment of any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefits plans described in section 3(3) of the Employee Retirement Security Act of 1974, as amended ("ERISA") that may be required by law;
(j) action to make or change any material Tax (as defined in Section 3.16 below) election (including any election relating to the Company's Tax accounting period or Tax accounting method), file any amended Tax Return (as defined in Section 3.16 below) which amends the Tax Return in any material respect, enter into any closing agreement, settle any material Tax claim or assessment relating to the Company or any Company Subsidiary, surrender any right to claim a refund of Taxes in any material amount, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any Company Subsidiary, or take any other action or omit to take any action, other than actions taken or not taken in the ordinary course of business, that would have the effect of increasing the Tax liability, in any material respect, of the Company or any Company Subsidiary;
(k) other than as required by GAAP or by the SEC, changes with respect to accounting principles or procedures, including, without limitation, any revaluation of assets;
(i) sale, assignment, lease, termination, abandonment, transfer, authorization to encumber or to otherwise dispose of or grant of any security interest in and to any material Company Intellectual Property, in whole or in part, except in the ordinary course of business, (ii) grant of any license with respect to any Company Intellectual Property, other than license of Company software to customers of the Company or any Company Subsidiary in the ordinary course of business, (iii) development, creation or invention of any Intellectual Property jointly with any third party, or (iv) to the Company's knowledge, disclosure, or authorization for disclosure, of any confidential material Company Intellectual Property, unless such Company Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof; or
(im) any agreementauthorization, whether in writing agreement or otherwise, commitment by the Company or any Company Subsidiary to take do any action of the things described in this Section 2.73.09.
Appears in 1 contract
Sources: Merger Agreement (Selectica Inc)
Absence of Certain Changes or Events. Except as disclosed in Section 3.7 of the Company Disclosure Schedule, since the Reference Balance Sheet Date, the Company and each Company Subsidiary has conducted its business in the ordinary course consistent with past practice, and except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
occurred (i) any splitpurchase or other acquisition of, combination or reclassification of any capital stocksale, (ii) any declarationlease, setting aside or payment of any dividend ondisposition, or other distribution (whether in cash, stock or property) in respect transfer of, or mortgage, pledge or subjection to any material encumbrance or lien on, any material asset, tangible or intangible, of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
; (gii) any loss ofchange in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any Company Subsidiary or any revaluation by the Company or any Company Subsidiary of any of its assets; (iii) any declaration, setting aside, or receipt payment of written notice a dividend or other distribution with respect to the shares of the Company Capital Stock, or any split-up or other recapitalization in respect of the Company Capital Stock, or any direct or indirect redemption, purchase or other acquisition by the Company of any intention to cancel shares of Company Capital Stock; (iv) any material contract entered into by the Company or otherwise terminateany Company Subsidiary, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable provided to any of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyParent, or any amendment or termination of, or default under, any material contract to which the Company or any Company Subsidiary is a party or by which it is bound; (v) any amendment or change to the Certificate of Incorporation or Bylaws of the Company or the constituent documents of any Company Subsidiary; (vi) any material increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; compensation or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.
Appears in 1 contract
Sources: Merger Agreement (Tickets Com Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreementdisclosed in the Company SEC Reports on file with the SEC, since the Balance Sheet Date and through the date hereof, each of the Company Balance Sheet, Company and Company its Subsidiaries have has conducted their its respective businesses in all material respects business in the ordinary course of business. Since the date of the Company Balance Sheet, business consistent with past practice and there has not been:
(a) a Any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its Subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company of the Company's or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct any of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole' capital stock;
(d) any salegrant by the Company or any of its Subsidiaries to any current or former director, transfer, officer or other disposition employee of the Company or any of its Subsidiaries of any increase in compensation or pay any bonus, except for non-material properties increases of cash or assets (whether real, personal or mixed, tangible or intangible) except equity compensation in the ordinary course of business consistent with past practicesgranted to employees who are not executive officers of the Company;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for grant by the obligations of any other Person other than those of Company or Company Subsidiaries, any of its Subsidiaries to any such current or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any former director, officer or other affiliate employee of Companyany increase in severance, other than advances retention or termination pay, except to employees for travel and other reimbursable expenses the extent required under any agreement (or in the ordinary course case of businessany employee not covered by an employment agreement to the extent granted in accordance with the Company's employment compensation policies that have been provided in writing to Parent) in each case in effect as the date hereof;
(f) any amendment or modification to any Company Options or other equity-based compensation awards;
(g) any material change in financial or tax accounting methods, principles or practices by the Company or any of its Subsidiaries except insofar as may have been required by a change in GAAP or Law and have been disclosed in Company SEC Reports;
(h) any material Tax election by the Company or any of its Subsidiaries or settlement or compromise by the Company or any of its Subsidiaries of any material Tax liability or refund;
(i) any material Tax election incurrence, assumption or material change in guarantee by the Company or any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing its Subsidiaries of any material amended Tax ReturnsIndebtedness individually or in the aggregate in excess of $1,000,000, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(gj) any loss ofcreation or assumption by the Company or any of its Subsidiaries of any Lien on any material asset of the Company or any of its Subsidiaries other than in the ordinary course of business;
(k) any making of any loans, advances or capital contributions to, or receipt of written notice of any intention to cancel or otherwise terminateinvestments in, any identified Contract that would be reasonably likelyother Person, individually other than (A) to the Company or any direct or indirect wholly-owned Subsidiary of the Company, and (B) other than advances of expenses to employees, consultants or directors made in the aggregateordinary course of business;
(l) any write off by the Company or any of its Subsidiaries as uncollectible any notes or accounts receivable, to be material to Company other than except for write offs in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectpractice;
(h) as of the date hereof, (im) any increase cancellation of any material debts or change in waiver of any compensation, benefits material claims or bonus paid rights by the Company or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.its Subsidiaries;
Appears in 1 contract
Sources: Merger Agreement (Acxiom Corp)
Absence of Certain Changes or Events. Except Since September 30, 2005, except as specifically contemplated by by, or as disclosed in, this Agreement, since the date Agreement or Section 3.9 of the Company Balance SheetDisclosure Memorandum, the Company and Company each of its Subsidiaries have has conducted their respective its businesses in all material respects the ordinary course consistent with past practice and, since such date there has not been any:
(a) Material Adverse Effect or an event or development that would, individually or in the aggregate, have a Material Adverse Effect;
(b) amendment to, or change in, the Company Certificate or Company Bylaws;
(c) incurrence, creation or assumption by the Company or any of its Subsidiaries of (i) any mortgage, deed of trust, security interest, pledge, title retention device or collateral assignment, (ii) any claim, lien, charge, restriction or other encumbrance of any kind on any of the assets or properties of the Company or any of its Subsidiaries other than obligations or liabilities incurred in the ordinary course of their respective business. Since , including those related to letters of credit or (iii) any indebtedness for borrowed money to purchase inventory or other indebtedness for borrowed money in excess of $50,000;
(d) offer, issuance or sale of any debt or equity securities of the date Company, or any options, warrants or other rights to acquire from the Company, directly or indirectly, any debt or equity securities of the Company Balance Sheet, there has not been:(other than pursuant to the exercise of outstanding Company Options in accordance with the terms thereof);
(ae) payment or discharge by the Company or any of its Subsidiaries of any security interest, lien, or encumbrance of any kind on any asset or property of the Company or any of its Subsidiaries, or the payment or discharge of any liability other than in the ordinary course of its business;
(f) purchase, license, sale, assignment or other disposition or transfer (or any agreement or other arrangement for the purchase, license, sale, assignment or other disposition or transfer) of any of the assets, properties or goodwill of the Company or any of its Subsidiaries other than in the ordinary course of its business;
(g) damage, destruction or loss of any property or asset, whether or not covered by insurance, having (or likely with the passage of time to have) a Material Adverse Effect on CompanyEffect;
(ih) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or the making of any other distribution (whether in cash, stock or property) in respect of, any the capital stock of the shares Company, any split, combination or recapitalization of the capital stock, stock of the Company or any purchasedirect or indirect redemption, redemption purchase or other acquisition of any capital stock of the shares of capital stock Company or any other securities change in any rights, preferences, privileges or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term restrictions of any outstanding securitysecurity of the Company;
(ci) material increase in the compensation payable or to become payable to any (i) any disposing of the officers or impairment directors of or permitting to lapse of any Company IP Rights that would be material and adverse to the Company or outside the ordinary course of business, (ii) disposing employees of the Company, except in connection with normal employee salary or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company performance reviews and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of the Company’s business consistent with past practicesor as required under the plans of any Company Benefit Plan or applicable Law;
(ej) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for making by the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to to, or any investment in, any officer, director or shareholder of the Company or any firm or business enterprise in which any Personsuch person had a direct or indirect material interest at the time of such loan, including any directoradvance, officer capital contribution or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessinvestment;
(ik) any entering into, material Tax election amendment of, relinquishment, termination or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required non-renewal by applicable laws or regulations, any filing the Company of any material amended Tax ReturnsContract, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of its business;
(gl) assertion by any loss of, or receipt customer(s) of written notice the Company of any intention complaint regarding the Company’s services or products which has a reasonable factual basis and, if substantiated, is reasonably likely to cancel have a Material Adverse Effect;
(m) material change in the policies under which the Company extends discounts, credits or warranties to customers or otherwise terminatedeals with its customers;
(n) entering into by the Company of any transaction, any identified Contract or agreement that would be reasonably likelyby its terms requires or contemplates a current and/or future financial commitment, individually expense or obligation on the part of the Company involving in the aggregateexcess of $100,000, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectCompany’s business;
(ho) as any license, transfer or grant of a right under any Company Material Intellectual Property, other than in the ordinary course of the date hereof, Company’s business;
(ip) any increase agreement made by the Company to provide exclusive services to any person or change not to engage in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7business activity.
Appears in 1 contract
Sources: Merger Agreement (Ecost Com Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement(a) Since the Balance Sheet Date, since the date businesses of the Company Balance Sheet, Company and Company its Subsidiaries have been conducted their respective businesses in all material respects in the ordinary course of business. Since business consistent with past practice.
(b) Without limiting the date generality of the Company foregoing Section 3.10(a), since the Balance SheetSheet Date, there has not been:
(ai) a Material Adverse Effect any: (A) incurrence of, or guarantee with respect to, or provision of credit support for, any indebtedness for borrowed money by the Company or any of its Subsidiaries, other than pursuant to the Company’s or any of its Subsidiaries’ existing credit facilities in the ordinary course of business consistent with past practice; (B) event of default or default under the Company’s or any of its Subsidiaries’ existing credit facilities or outstanding loans; or (C) creation or assumption by the Company or any of its Subsidiaries of any material Lien on Companyany material asset, other than Permitted Liens;
(iii) any splitevents, combination changes, effects, developments, conditions or reclassification of any capital stockoccurrences that, individually or in the aggregate, constitute a Company Material Adverse Effect;
(iiiii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the shares of capital stock, stock of the Company or any purchaseof its Subsidiaries (except for dividends or other distributions by any direct or indirect wholly owned Subsidiary to the Company or to any wholly owned Subsidiary);
(iv) any redemption, redemption repurchase or other acquisition of any of the shares of capital stock of the Company or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securityits Subsidiaries;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (iiv) any material change in any method of accountingfinancial accounting or financial accounting principle or practice used by the Company or any of its Subsidiaries, method of accounting principles or practice, except for any other than such change changes required by reason of Law or a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of businessGAAP;
(gvi) any loss of(A) deferred compensation, severance or receipt similar agreement entered into or amended by the Company or any of written notice its Subsidiaries and any employee; (B) increase in or acceleration in the vesting or payment of the compensation or benefits payable or to become payable to any director, officer, employee, independent contractor or consultant of the Company or any of its Subsidiaries; (C) any increase in the coverage or benefits available under any vacation pay, company awards, salary continuation or disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any of the directors or officers of the Company or any of its Subsidiaries or generally applicable to all or any category of the Company’s or any of its Subsidiaries’ employees; (D) grant of equity or equity-based awards that may be settled in Common Shares or any other equity securities of the Company or any of its Subsidiaries or the value of which is linked directly or indirectly, in whole or in part, to the price or value of any intention to cancel Common Shares or otherwise terminate, other equity securities of the Company or any identified Contract of its Subsidiaries; (E) change in the terms of any outstanding Company Option; or (F) establishment or adoption of any new arrangement that would be reasonably likely, individually an Employee Benefit Plan or in the aggregate, to be material to Company would terminate or materially amend any existing Employee Benefit Plan (other than in changes necessary to comply with applicable Law or the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectCompany’s obligations under this Agreement);
(h) as of the date hereof, (ivii) any increase loan, advance or change in any compensation, benefits capital contribution made by the Company or bonus paid or made payable to any of their executive officers or directorsits Subsidiaries to, or employees earning more investment in, any Person other than $100,000 in base salary annuallyloans, advances or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of capital contributions made to a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansSubsidiary; or
(iviii) any agreement, whether in writing or otherwise, agreement to take or permit any action described actions specified in this Section 2.73.10(b), except for this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Cardiodynamics International Corp)
Absence of Certain Changes or Events. Except as From September 30, 2017 to the date of this Agreement (and not taking into account the transactions contemplated by this AgreementAgreement and the Ancillary Agreements), since the date of the Company Balance Sheet, Company (i) there has not occurred any Material Adverse Effect and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, (ii) there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practice, with respect to the Company, any:
(a) amendment of the charter, by-laws or other organizational documents of the Company;
(b) split, combination or reclassification of any shares of its capital stock;
(c) 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;
(d) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock, except as set forth on Schedule 4.6(d) of the Company Disclosure Schedules;
(e) material change in any method of accounting or accounting practice of the Company, except as required by Bolivian GAAP or as disclosed in the notes to the Financial Statements;
(f) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other than threatened terminations expenses, deferral of revenue and acceptance of customer deposits;
(g) entry into any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectthat would constitute a Material Contract;
(h) as incurrence, assumption or guarantee of the date hereof, any indebtedness for borrowed money;
(i) transfer, assignment, sale or other disposition of any increase of the assets shown or change reflected in the Balance Sheet (other than sales of inventory) or cancellation of any compensationdebts or entitlements;
(j) transfer, benefits assignment or bonus paid grant of any license or made payable sublicense of any material rights under or with respect to any of their executive officers Company Intellectual Property;
(k) material damage, destruction or directors, loss (whether or employees earning more than $100,000 in base salary annuallynot covered by insurance) to its material property;
(l) any capital investment in, or any loan to, any other Person;
(m) acceleration, termination, material modification to or cancellation of any Material Contract to which the Company is a party or by which it is bound;
(n) any material capital expenditures;
(o) imposition of any Encumbrance, other than Permitted Encumbrances upon any of the Company properties, capital stock or assets, tangible or intangible;
(p) (i) grant of any bonuses or increase in severance any wages, salary, severance, pension or other compensation or benefits in respect of its current or former employees, officers, directors or independent contractors, in each case whose annual base compensation exceeds 200,000 Bolivianos per year, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees, in each case whose annual base compensation exceeds 200,000 Bolivianos per year, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, or independent contractor, in each case whose annual base compensation exceeds 200,000 Bolivianos per year;
(q) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer whose annual base compensation exceeds 200,000 Bolivianos per year, except to fill a vacancy in the ordinary course of business;
(r) adoption, modification or termination pay, or any material modification or amendment of any currently effective any: (i) employment, severance, termination retention or indemnification other agreement with any current or any agreement or policy the benefits of which are contingentformer employee, officer, director, or the terms of which are materially alteredindependent contractor, upon the occurrence of a transaction involving Company of the nature contemplated hereby or in each case whose annual base compensation exceeds 200,000 Bolivianos per year, (ii) Employee Plan or (iii) collective bargaining or other agreement with a union or labor organization;
(s) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its current or former directors, officers and employees;
(t) entry into a new line of business;
(u) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under applicable Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(v) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(w) action by the Company to make, change or rescind any material Tax election, amend any Return or take any position on any Return, take any action, omit to take any action taken to accelerate, amend or change enter into any other transaction that would have the period effect of vesting materially increasing the Tax liability or exercisability materially reducing any Tax asset of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization in respect of cash payments in exchange for any Company Options granted under the Company Stock PlansPost-Closing Tax Period; or
(ix) any agreementcontract or agreement to do any of the foregoing, whether in writing or otherwise, to take any action described or omission that would result in this Section 2.7any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreement(a) Since December 31, since 2023 (the date of the “Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetSheet Date”), there has not been:
been (ai) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows, or properties of Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on with respect to Company;
(i) any split, combination and to the Knowledge of the Company, no fact or reclassification of any capital stockcondition exists which is reasonably likely to cause a Material Adverse Effect with respect to the Company in the future, (ii) any change by Company or any of its Subsidiaries in its accounting methods, principles or practices, other than changes required by applicable Law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of Company or any of the shares of capital stock, its Subsidiaries or any purchaseredemption, redemption purchase or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any optionsits securities, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices practice, (iv) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (v) any material change in the credit policies or procedures of Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive, (vi) other than loans and loan commitments, investment securities, and other than threatened terminations real estate owned in the ordinary course of business and consistent with past practice, any material acquisition or disposition of any identified Contract where Company has cured assets or properties, or any contract for any acquisition or disposition entered into, or (vii) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the underlying cause ordinary course of the threat and such Contract still remains in full force and effect;business consistent with past practice.
(hb) Except as of otherwise expressly permitted or expressly contemplated by this Agreement, and except as set forth in Company Disclosure Schedule 3.10(b), since the date hereofCompany Balance Sheet Date, the Company and its Subsidiaries have carried on its business in the ordinary course consistent with past practice and there has not been: (i) any entry by Company or any of its Subsidiaries into any contract or commitment of more than (A) $75,000 in the aggregate or (B) $75,000 per annum with a term of more than one year, other than contracts, borrowings, loans and loan commitments in the ordinary course of business, or (ii) other than in the ordinary course of business, any increase in or change in establishment of any bonus, insurance, severance, deferred compensation, benefits pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or bonus paid restricted stock awards), stock purchase or made other equity-based compensation (including phantom stock awards) or other employee benefit plan, or any other increase in the compensation payable or to become payable to any of their executive directors, officers or directors, employees of Company or employees earning more than $100,000 in base salary annuallyany of its Subsidiaries, or any increase in grant of severance or termination pay, or any material modification contract or amendment arrangement entered into to make or grant any severance or termination pay, any payment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingentbonus, or the terms taking of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken not in the ordinary course of business with respect to acceleratethe compensation or employment of directors, amend or change the period of vesting or exercisability of options or restricted stockofficers, or reprice employees of Company Options granted under the Company Stock Plans or authorization any of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7its Subsidiaries.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (MetroCity Bankshares, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Seller Balance Sheet, Sheet there has not been:
: (ai) a any Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stockthe Subsidiaries, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of Subsidiaries’ capital stock, or any purchase, repurchase for value or redemption by the Seller or other acquisition any of its Subsidiaries of any of the shares of capital stock or any other securities or other partnership interests or any optionsof the Subsidiaries, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any of the Subsidiaries’ capital stock, (iv) any granting by any of its Subsidiaries of any material term of any outstanding security;
(c) any (i) any disposing whether individually or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate) increase in compensation or fringe benefits, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition except for normal increases of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) practice or any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for payment by any of the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing Subsidiaries of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, whether individually or in the aggregate) bonus, to be material to Company other than except for bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations practice or any granting by any of the Subsidiaries of any identified Contract where Company has cured material (whether individually or in the underlying cause of the threat and such Contract still remains in full force and effect;
(haggregate) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, pay or any entry by any of the Subsidiaries into any material modification (whether individually or amendment of any currently effective in the aggregate) employment, severance, termination or indemnification agreement, (v) entry by any of the Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any agreement material Intellectual Property (as defined in Section 2.9(a)(i)), other than non-exclusive license, supply and distribution agreements entered into in the ordinary course of business consistent with past practice, (vi) any material (whether individually or policy in the benefits aggregate) amendment or consent with respect to any Material Contract (as defined in Section 2.15) in effect since the date of which are contingentthe Seller Balance Sheet, (vii) any material change by the Seller in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or the terms (viii) any material revaluation of which are materially altered, upon the occurrence of a transaction involving Company any of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Subsidiaries’ assets.
Appears in 1 contract
Sources: Stock Purchase and Option Agreement (Transax International LTD)
Absence of Certain Changes or Events. Except as contemplated by this AgreementAgreement or as set forth in Schedule 7.8, since the date of the Company Balance SheetAudited Financial Statements, the Company and the Company Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of businessconsistent with past practice. Since Without limiting the date generality of the Company Balance Sheetforegoing, there has not beensince December 31, 2010:
(a) a Material Adverse Effect on there has not been any change in the Company’s or in the Company Subsidiaries’ authorized or issued capital stock, any grant of any option or right to purchase shares of capital stock of the Company or the Company Subsidiaries; any issuance of any security convertible into such capital stock; any grant of any registration rights with respect to such stock or units; any purchase, redemption, retirement, or other acquisition by the Company or by the Company Subsidiaries of any shares of its capital stock; any dividend or other distribution declared, set aside, made or paid with respect to the Company’s or the Company Subsidiaries’ capital stock;
(b) there has not been any amendment to any of the Company Organizational Documents or Company Subsidiaries Organizational Documents;
(c) the Company or the Company Subsidiaries have not (i) incurred or assumed any split, combination or reclassification of any capital stockCompany Indebtedness (other than Company Indebtedness described on Schedule 7.5(a)), (ii) issued any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsdebt securities, or (iii) assumed or guaranteed or otherwise become responsible for any amendment indebtedness of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholePerson;
(d) the Company or the Company Subsidiaries have not made any saleacquisition (by merger, transferconsolidation, or other disposition acquisition of stock or assets) of any material properties corporation, partnership or assets (whether real, personal other business organization or mixed, tangible or intangible) except in the ordinary course of business consistent with past practicesdivision thereof;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or the Company SubsidiariesSubsidiaries have not canceled or compromised any material debt or claim, or (ii) any making of any loan, advance waived or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) released any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method right of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable value other than in the ordinary course of business;
(f) the Company or the Company Subsidiaries have not created any Encumbrances on any of their assets, other than Permitted Encumbrances;
(g) the Company or the Company Subsidiaries have not sold, assigned or transferred any loss ofof their assets except sales of inventory and sales of obsolete or worn out equipment in the ordinary course of business. The Company or the Company Subsidiaries have not suffered any casualty or destruction (whether or not covered by insurance) to their assets, business, properties, results of operation or receipt of written notice condition (financial or otherwise) which has or will reasonably be expected to result in a Material Adverse Change;
(h) the Company or the Company Subsidiaries have not (i) made or amended any Tax election or took any position or adopted any method that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods unless such position or election is required pursuant to a change in applicable law or the Code; (ii) entered into any settlement or compromise of any intention to cancel Tax liability or otherwise terminate, audit; (iii) filed any identified Contract amended Tax Returns that would be reasonably likelyresult in a change in Tax liability, individually taxable income or loss to the Company or the Company Subsidiaries; (iv) changed any annual Tax accounting period, (v) entered into any closing agreement relating to any Tax liability or filed a request for a Tax ruling, determination letter or other written or oral advice from a Tax authority; (vi) surrendered any right to claim a Tax refund or credit, offset or other reduction in Tax liability; or (vii) gave or requested any waiver of a statute of limitations with respect to any Tax Return, claim or assessment.
(i) the Company or the Company Subsidiaries have not made any material change in any method of accounting or any material change in depreciation, amortization or inventory valuation policies or rates theretofore listed or adopted, other than any such changes required by GAAP;
(j) the Company and the Company Subsidiaries have conducted their respective cash management customs and practices (including the timing and collection of receivables and payment of payables and other current liabilities) and maintained their respective books and records in the aggregateusual and ordinary course of business consistent with past custom and practice;
(k) the Company and the Company Subsidiaries (i) have conducted their respective businesses only in the ordinary course of business, (ii) have maintained their respective working capital at a level sufficient for the operation of their respective businesses in the ordinary course and (iii) since December 31, 2010, have used their respective reasonable best efforts to be material maintain good relations and good will with clients, customers, landlords, employees, agents and others having business relationships with the Company or the Company Subsidiaries, in each case consistent with past custom and practice;
(l) the Company and the Company Subsidiaries have not (i) increased the compensation or benefits payable to any director or officer of the Company or the Company Subsidiaries, or, other than in the ordinary course of business consistent with past practices and business, any other than threatened terminations of any identified Contract where Company has cured the underlying cause employee of the threat and Company or the Company Subsidiaries; (ii) entered into any severance, deferred compensation, bonus, incentive, profit-sharing or other agreement (or amended any such Contract still remains in full force and effect;
(hexisting agreement to increase benefits thereunder) as with any director, officer or employee of the date hereofCompany or the Company Subsidiaries or amended any generally applicable severance or termination policy to increase benefits thereunder; or (iii) permitted any director, officer or employee of the Company or the Company Subsidiaries who was not already a party to an agreement or a participant in a plan providing benefits upon or following a “change in control” to become a party to any such agreement or a participant in any such plan, other than, in the case of clauses (i) any increase or change in any compensationthrough (iii), benefits or bonus paid or made payable pursuant to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification a pre-existing agreement or Benefit Plan or as required by applicable law; and
(m) the Company and the Company Subsidiaries have not entered into any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) made any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, commitment to take any action of the types of actions described in this any of Section 2.77.8(a) through and including Section 7.8(l) set forth above.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth in Schedule 2.9 hereto or in the Unaudited Financial Statements, since the date of the Company Balance SheetDecember 31, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet2006, there has not been:
: (ai) a any Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stockthe Company and its Subsidiaries, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital Company’s stock, or any purchase, redemption or other acquisition by the Company of any of the shares of Company’s capital stock or any other securities or other partnership interests of the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssecurities, or (iii) any amendment split, combination or reclassification of any material term of the Company’s capital stock, (iv) any granting by the Company or its Subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by the Company or any extension or waiver of the statutory period its Subsidiaries of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of practice, or any identified Contract where granting by the Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its Subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (v) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company or any of its Subsidiaries with respect to any Governmental Entity, (vi) any material change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any issuance of capital stock of the Company, (ix) any revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company other than in the ordinary course of business, or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(ix) any agreement, whether in writing written or otherwiseoral, to take do any action described in this Section 2.7of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated (a) Since the Balance Sheet Date:
(i) there has not been any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by this Agreementthe Company or its Subsidiaries, since the date whether or not covered by insurance;
(ii) there has not been any declaration, accrual, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock or other equity interests of the Company or any of its Subsidiaries (except for pro rata dividends or other pro rata distributions by any direct or indirect Subsidiary of the Company to the Company or to any Subsidiary of the Company), or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding Company securities;
(iii) there has not been any material change in any method of accounting or accounting practice or internal controls (including internal control over financial reporting) by the Company or any of its Subsidiaries, except insofar as may have been required by a change in GAAP or SEC rules and regulations;
(iv) there has not been (i) any (A) material increase in the compensation payable or to become payable to any retired, former or current employee, officer, consultant, or director of the Company or any of its Subsidiaries (excluding independent contractors) (each, a “Company Service Provider”), in each case other than routine increases in the ordinary course of business, or (B) payment to any Company Service Provider of any material bonus, or grant to any director or officer of the Company or its Subsidiaries of any rights to receive severance, termination, retention or Tax gross-up compensation or benefits, in each case other than routine payments or grants in the ordinary course of business, (ii) any establishment, adoption, entry into or material amendment of any Employee Benefit Plan or (iii) any action taken by the Company or any of its Subsidiaries to fund or in any other way secure the payment of compensation or benefits under any Employee Benefit Plan; and
(v) there has not been any agreement to do any of the foregoing.
(b) Since the Balance SheetSheet Date, there has not been any change, event, development, circumstance, condition, occurrence or effect that has had, or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since the Balance Sheet Date, except for this Agreement and the transactions contemplated hereby, the Company and Company its Subsidiaries have conducted carried on and operated their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.
Appears in 1 contract
Sources: Merger Agreement (Noble Energy Inc)
Absence of Certain Changes or Events. Except (a) Since the Balance Sheet Date, except as contemplated by this Agreement, disclosed in the Company SEC Reports filed since the date Balance Sheet Date, each of the Company Balance Sheet, Company and Company Subsidiaries have its subsidiaries has conducted their its respective businesses in all material respects business only in the ordinary course of business. Since the date of the Company Balance Sheet, business consistent with past practice and there has not been:
(ai) any event, occurrence, development or state of circumstances or facts that has had a Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stockstock of the Company, or any purchase, redemption or other acquisition by the Company or any of its subsidiaries of any of the shares of capital stock of the Company or any other securities or other partnership interests of the Company or any of its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or ;
(iii) any amendment split, combination or reclassification of any material term of any outstanding securitythe Company's capital stock;
(civ) entry by the Company or any of its subsidiaries into, or material modification, amendment or cancellation of, any sponsorship, advertising, merchant program or other similar agreement, which either is not terminable by the Company or its subsidiaries, as the case may be, without penalty upon no more than thirty (30) days' prior notice or provides for payments by or to the Company or its subsidiaries in an amount in excess of $100,000 over the term of the agreement;
(v) any change in any method of accounting, method of accounting principles or practice by the Company or any of its subsidiaries, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC;
(ivi) any communication from the Nasdaq Stock Market, Inc. ("NASDAQ") with respect to the delisting of the Company Common Stock;
(vii) any revaluation by the Company or any of its subsidiaries of any of its assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(viii) any incurrence of liabilities or obligations by the Company or any of its subsidiaries (absolute, accrued, contingent or otherwise), except non-material items or employee compensation and benefits incurred in the ordinary course of business consistent with past practice, in an amount in excess of $100,000 individually or $1,000,000 in the aggregate;
(ix) any payment, discharge or satisfaction of any claim, liability or obligation (whether absolute, accrued, contingent or otherwise) by the Company or any of its subsidiaries, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice of liabilities and obligations reflected or reserved against in the Company Balance Sheet or incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date in an amount in excess of $100,000 individually or $1,000,000 in the aggregate;
(x) any cancellation by the Company or any of its subsidiaries of any debts or waiver of any claims or rights of material value in an amount in excess of $100,000 individually or $1,000,000 in the aggregate;
(xi) any sale, transfer, or other disposition of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its subsidiaries (other than in connection with any Discontinued Business), except in the ordinary course of business consistent with past practice in an amount in excess of $100,000 individually or $1,000,000 in the aggregate;
(xii) any disposing or impairment of or permitting to lapse of any rights to the use of any Company IP Rights that would be material and adverse to Company Intellectual Property Rights, or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person person other than representatives of Parent any trade secret Trade Secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholeknowledge;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(ixiii) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulationsaccounting, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax material claim, audit, action, suit, proceeding or investigation relating to Taxes (a "TAX CLAIM"), any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated Claim by the SEC, Company or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of businessits subsidiaries;
(gxiv) any loss ofdamage, destruction or receipt of written notice of any intention to cancel loss, whether or otherwise terminatenot covered by insurance, any identified Contract that would be reasonably likelywould, individually or in the aggregate, have a Material Adverse Effect on the Company;
(xv) any amendment of any material term of any outstanding security of the Company or any of its subsidiaries;
(xvi) any making of any loan, advance or capital contribution to be material to Company or investment in any person, including without limitation any director, officer or other affiliate of the Company, other than loans, advances or capital contributions to or investments in wholly-owned subsidiaries or entities that became wholly-owned subsidiaries made in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectpractice;
(hxvii) any transaction or commitment made, or any contract or agreement entered into, amended, or otherwise modified, by the Company or any of its subsidiaries relating to its assets or business (including the acquisition or disposition of any assets or the merger or consolidation with any person) material to the Company and its subsidiaries taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement, but in the case of transactions or commitments outside of the date hereof, (i) any increase ordinary course of business in no event representing commitments on behalf of the Company or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning its subsidiaries of more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Planstransaction and $1,000,000 for any series of transactions; or
(ixviii) any agreement, whether in writing or otherwise, to take any action described in this Section 2.72.6 by the Company or any of its subsidiaries.
(b) Since the Balance Sheet Date, (i) none of the persons listed in Section 2.6(b) of the Company Disclosure Letter has given notice in writing or other indication of any intention to cancel or otherwise terminate a material business relationship with the Company or any subsidiary of the Company, and (ii) to the knowledge of the Company, as of the date of this Agreement (other than this Agreement and the transactions contemplated hereby), no event has occurred or failed to occur which would entitle any such entity or customer to terminate such a business relationship.
(c) There are no liabilities or obligations of the Company or any of its subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances that could reasonably be expected to result in such a liability, other than, (i) liabilities or obligations disclosed and provided for in the Company Balance Sheet or in the notes thereto or in the Company SEC Reports filed since the Balance Sheet Date and prior to the date hereof, and (ii) liabilities or obligations incurred in the ordinary course of business consistent with past practices since the Balance Sheet Date that could not reasonably be expected to be, individually or in the aggregate, material to the Company.
Appears in 1 contract
Sources: Merger Agreement (Inktomi Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. (a) Since the date of the Company Balance SheetSheet and through the date hereof, there has not been:
: (ai) a any Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, (iii) any amendment of the Company’s Certificate of Incorporation or Bylaws, (iv) any damage, destruction or other casualty loss (whether or not covered by insurance) with respect to any Assets that, individually or in the aggregate, are material to the Company and its Subsidiaries, taken as a whole, (v) any purchase, redemption or redemption, other acquisition or amendment by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iiivi) any amendment split, combination or reclassification of any material term of the Company’s or any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businessits Subsidiaries’ capital stock, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iiivii) any material change to Company’s by the Company in its accounting methods, principles or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partypractices, exceptexcept as required by concurrent changes in GAAP, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(iviii) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required revaluation by applicable laws or regulations, any filing the Company of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material its assets, including, without limitation, writing-including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofpractice, (iix) any increase or change material election in any compensation, benefits or bonus paid or made payable to any respect of their executive officers or directors, or employees earning more than $100,000 in base salary annuallyTaxes, or any increase adoption or change of any material accounting method in severance respect of Taxes, entering into of any tax allocation agreement, tax sharing agreement, tax indemnity agreement or termination payclosing agreement, settlement or compromise any claim, notice, audit report or assessment in respect of Taxes, or consent to any material modification extension or amendment waiver of the limitation period applicable to any currently effective employmentclaim or assessment in respect of Taxes, severanceor (x) any plan of complete or partial liquidation, termination dissolution, merger, consolidation, restructuring, recapitalization or indemnification agreement other reorganization of the Company or any agreement or policy of its Subsidiaries (other than the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Merger).
Appears in 1 contract
Sources: Merger Agreement (Kyphon Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since between March 31, 2004 and the date of hereof, (a) the Company Balance Sheet, Company and Company its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course Ordinary Course of business. Since the date of the Company Balance SheetBusiness, and (b) there has not been:
been any (ai) a Material Adverse Effect on the Company;
(i) any split, combination or reclassification of any capital stock, ; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with respect to any of the Company’s or any of its Subsidiaries’ capital stock; (iii) split, Table of Contents combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock or any issuance or the authorization of any issuance of any other securities in respect of, any in lieu of or in substitution for shares of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of Company’s capital stock or any other securities of the Company or any of its Subsidiaries (other than shares of Company Common Stock issuable upon exercise of outstanding Options under the Stock Plans); (iv) damage, destruction or other partnership interests loss of more than $200,000 with respect to any asset or property owned, leased or otherwise used by the Company or any optionsof its Subsidiaries, warrantswhether or not covered by insurance; (v) incurrence, calls assumption or rights to acquire guarantee by the Company or any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment its Subsidiaries of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) indebtedness for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable borrowed money other than in the ordinary course Ordinary Course of business;
(g) any loss of, or receipt Business of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more greater than $100,000 in base salary annually200,000; (vi) transaction or binding commitment made, or any increase in severance or termination payContract entered into, by the Company or any material modification of its Subsidiaries relating to its assets or amendment business (including the acquisition or disposition of any currently effective employmentassets or property) or any relinquishment by the Company or any of its Subsidiaries of any Contract or any right there in, severancehaving a stated contract amount or value of $200,000 or more (other than Contracts with customers and suppliers entered into in the Ordinary Course of Business); (vii) any exclusive license, termination distribution, marketing or indemnification sales agreement entered into or any agreement to enter into such agreement; or policy the benefits of which are contingent, (viii) any commitment to any Person to (A) develop software without charge or the terms of which are materially altered, upon the occurrence of a transaction involving Company (B) incorporate any software into any of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Company’s products.
Appears in 1 contract
Sources: Merger Agreement (QRS Corp)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date set forth in Section 2.8 of the Company Balance SheetDisclosure Schedule, Company and Company Subsidiaries have since August 31, 1995 each of the Companies has conducted their respective businesses in all material respects its business in the ordinary course of business. Since the date of the Company Balance Sheet, and there has not been:
(a) a Material Adverse Effect on Company;
occurred: (i) any split, combination amendments or reclassification changes in the Articles of any capital stock, Incorporation or Bylaws of either of the Companies; (ii) any declaration, setting aside or payment of any dividend ondamage to, or other distribution (whether in cash, stock destruction or property) in respect loss of, any assets of either of the shares of capital stock, Companies (whether or any purchase, redemption not covered by insurance) that had or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights is reasonably likely to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore have a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or Material Adverse Effect; (iii) any material change to Company’s or depletion of any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in assets of either of the case of Companies; (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(div) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver either of the statutory period of limitation applicable to any material Tax claimCompanies in its accounting methods, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or practices; (iiiv) any revaluation by either of the Companies of any material of its assets, including, without limitation, writing-writing down the value of capitalized inventory, or writing off notes or accounts receivable other than in the ordinary course of business;
; (gvi) any loss redemption or other acquisition of capital stock by either of the Companies or any declaration or payment of any dividend or other distribution in cash, stock or property with respect to the capital stock of either Company; (vii) any transfer of, or receipt of written notice of any intention to cancel or otherwise terminaterights granted under, any identified Contract that would be reasonably likelymaterial leases, individually licenses, agreements, patents, trademarks, trade names or in the aggregate, to be material to Company copyrights other than those transferred or granted in the ordinary course of business consistent with past practices business; (viii) any mortgage, pledge, security interest or imposition of lien or other encumbrance on any asset of either of the Companies, except those that are immaterial and other than threatened terminations incurred in the ordinary course of business, or (ix) any early collection, at a discount or par, of any identified Contract where Company has cured the underlying cause receivable of either of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Companies.
Appears in 1 contract
Absence of Certain Changes or Events. Except as set ------------------------------------ forth in Section 4.10 of the Company Disclosure Schedule or as contemplated by this Agreement, since the date of December 30, 2000, the Company Balance Sheet, Company and Company Subsidiaries its subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business. Since the date of the Company Balance Sheet, and in a manner consistent with past practice and there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method accounting or accounting practice by the Company or any of accounting principles or practiceits subsidiaries, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or United States generally accepted accounting principles;
(iiib) any revaluation by the Company or any of any its subsidiaries of a material assets, asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable receivable);
(c) any transaction or commitment made, or any contract or agreement entered into, by the Company or any of its subsidiaries relating to its assets or business (including, without limitation, the acquisition, disposition, leasing or licensing of any tangible or intangible assets) or any relinquishment by the Company or any of its subsidiaries of any contract or other right, in either case, material to the Company and its subsidiaries taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement;
(d) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) or other distribution in respect of the Company's capital stock or any redemption, purchase or other acquisition of any of the Company's securities;
(e) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(f) any amendment of any material term of any outstanding security of the Company or any of its subsidiaries;
(g) any issuance by the Company or any of its subsidiaries of any notes, bonds or other debt securities or any capital stock or other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities, except for the issuance of any shares of Common Stock pursuant to the exercise of any Options in existence prior to the date hereof;
(h) any incurrence, assumption or guarantee by the Company or any of its subsidiaries of any Indebtedness for Borrowed Money other than in the ordinary course of businessbusiness and in amounts and on terms consistent with past practices;
(gi) any loss of, creation or receipt assumption by the Company or any of written notice its subsidiaries of any intention to cancel or otherwise terminate, Lien on any identified Contract that would be reasonably likely, individually material asset(s) (alone or in the aggregate, to be material to Company ) other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectpractice;
(hj) as any making of any loan, advance or capital contributions to or investment in any entity or person other than loans, advances or capital contributions to or investments in wholly-owned subsidiaries made in the ordinary course of business consistent with past practice;
(k) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the date hereof, (i) any increase Company or change in any compensation, benefits or bonus paid or made payable to any of their executive officers its subsidiaries which, individually or directorsin the aggregate, has had or employees earning more than $100,000 in base salary annuallywould reasonably be expected to have a Company Material Adverse Effect, or any other event, change or circumstance that has or is reasonably likely to have a Company Material Adverse Effect;
(l) any material increase in severance the benefits under, or the establishment, material amendment or termination payof, any Benefit Plan (as defined in Section 4.13(b)) covering current or former employees, officers or --------------- directors of the Company or any of its subsidiaries, or any material modification increase in the compensation payable or amendment to become payable to or any other material change in the employment terms for any directors or officers of the Company or any currently effective of its subsidiaries or any other employee earning noncontingent cash compensation in excess of $75,000 per year;
(m) any entry by the Company or any of its subsidiaries into any employment, consulting, severance, termination or indemnification agreement with any director or officer of the Company or any of its subsidiaries or entry into any such agreement with any person for a noncontingent cash amount in excess of $75,000 per year or policy outside the benefits ordinary course of which are contingentbusiness;
(n) any labor dispute, other than routine individual grievances, or the terms of which are materially altered, upon the occurrence of any activity or proceeding by a transaction involving Company labor union or representative thereof to organize any employees of the nature contemplated hereby Company or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stockits subsidiaries, or reprice Company Options granted under the Company Stock Plans any lockouts, strikes, slowdowns, work stoppages or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansthreats thereof by or with respect to such employees; or
(io) any agreementauthorization of, whether in writing or otherwiseagreement by the Company or any of its subsidiaries to take, to take any action of the actions described in this Section 2.74.10, except ------------ as expressly contemplated by this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (FLD Acquisition Corp)
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince June 30, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet2001, there has not been:
(a) a Material Adverse Effect on Company;
: (i) any split, combination or reclassification of any capital stockCompany Material Adverse Effect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its Subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the shares of its Subsidiaries' capital stock or any other securities of the Company or other partnership interests of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of the Company's or any of Subsidiaries' capital stock, (iv) any granting by the Company or any of its Subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of cash or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except non-cash benefits compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by the Company or any extension or waiver of the statutory period its Subsidiaries of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of practice, or any identified Contract where granting by the Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its Subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (v) entry by the Company or any of its Subsidiaries into any material licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company other than in the ordinary course of business consistent with past practice, or (iiviii) any action taken to accelerate, amend other change or event that would have required the Buyer's consent under
Section 5.1 ( except for Section 5.1(r)) if such change or event had occurred after the period execution of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Agreement.
Appears in 1 contract
Sources: Offer Agreement (Hewlett Packard Co)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, the Company and its Subsidiaries have operated their businesses in the ordinary course consistent with past practices, and since such date there has not been:
(a) a any amendment or change in the Company Charter Documents or Subsidiary Charter Documents;
(b) any Material Adverse Effect on the Company;
(ic) any splitacquisition by the Company or any Subsidiary of the Company, combination or reclassification agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing, any material portion of assets or equity securities of, or by any capital stockother manner, any business or corporation, partnership, association or other business organization or division thereof;
(iid) any Contract, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any material joint venture, strategic partnership or alliance;
(e) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests its Subsidiaries, or any optionsCompany Option, warrantsCompany Warrant, calls or rights to acquire any such shares or other securities securities, except for repurchases from employees or consultants from, and forfeitures by, Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements and restricted stock award and restricted stock unit award agreements, or (iii) any amendment of any material term of any outstanding security;
(cf) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock;
(g) any forgiveness by the Company or any of its Subsidiaries, whether orally or in writing, of any loan to any Employee in an amount exceeding $10,000;
(i) any disposing material increase or impairment of decrease in compensation or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing fringe benefits (except as necessary in the conduct for normal increases or decreases of its business) cash compensation to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except current non-officer employees in the ordinary course of business consistent with past practices;
(epractice) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for by the obligations of any other Person other than those of Company or Company any of its Subsidiaries, whether orally or in writing, (ii) any making promise, commitment or payment by the Company or any of its Subsidiaries, whether orally or in writing, of any loan, advance or capital contribution material bonus (except for bonuses made to or investment in any Person, including any director, current non-officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessbusiness consistent with past practice), (iii) any adoption, change, or termination by the Company or any of its Subsidiaries, whether orally or in writing, of any severance, change of control, termination or bonus plan, policy or practice, or (iv) the adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement;
(i) any material Tax election amendment or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent termination with respect to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of businessCompany Material Contract;
(gj) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified (i) entry into a customer Contract that would be provides for (or is reasonably likelyexpected to provide for) revenues in excess of $250,000 annually and contains any material non-standard terms, individually including but not limited to, non-standard discounts, provisions for unpaid future deliverables, non-standard service requirements or in the aggregate, to be material to Company future royalty payments other than in the ordinary course of business consistent with past practices and practice, or any material change in the manner in which the Company or any of its Subsidiaries extends discounts, credits or warranties to customers or otherwise deals with its customers, or (ii) entry into any reseller or distributor agreement that provides for (or is reasonably expected to provide for) revenues in excess of $250,000 annually), in each case, other than threatened terminations in the ordinary course of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectbusiness consistent with past practice;
(hk) any change by the Company in its accounting methods, except as required by GAAP or applicable Legal Requirements;
(l) any debt, capital lease or other debt or equity financing transaction by the Company or any of its Subsidiaries or entry into any agreement by the Company or any of its Subsidiaries in connection with any such transaction;
(m) any material restructuring activities by the Company or any of its Subsidiaries, including any reductions in force, lease terminations, restructuring of contracts or similar actions;
(n) any sale, lease, license, encumbrance or other disposition of any business lines or any properties or assets, except the sale, lease, license or disposition of property or assets which are not material, individually or in the aggregate, to the business of the date hereofCompany or the licenses of current Company Products, in each case, in the ordinary course of business and in a manner consistent with past practice;
(o) (i) any increase loan or change in extension of credit by the Company or any compensation, benefits or bonus paid or made payable of its Subsidiaries to any Person other than in the ordinary course of their executive officers or directorsbusiness consistent with past practice, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerateloan, amend advance or capital contribution to, or any investment in, any of the Company’s or its Subsidiaries’ executive officers, directors or 1% stockholders or any firm or business enterprise in which the Company had knowledge that such officer, director or stockholder had a direct or indirect material interest at the time of such loan, advance, capital contribution or investment;
(p) adoption of or change the period in any Tax accounting method or Tax election, entering into any closing agreement in respect of vesting Taxes, settlement or exercisability compromise of options any Tax claim or restricted stockassessment, or reprice Company Options granted under extension or waiver of the limitation period applicable to any Tax claim or assessment other than with respect to any Tax liability that is in an amount less than $200,000 individually or $400,000 in the aggregate;
(q) any expenditure, transaction or commitment by the Company Stock Plans or authorization any of cash payments its Subsidiaries exceeding $200,000 individually or $400,000 in exchange for the aggregate, other than in the ordinary course of business consistent with past practice;
(r) any Company Options granted under material damage, destruction or loss of any material property or material asset of the Company Stock Plansor any of its Subsidiaries, whether or not covered by insurance;
(s) any termination of employment of a senior manager or key employee, or the termination of a material number of employees;
(t) any claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging a labor dispute, labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(u) any material Liability incurred by it to any of its officers, directors or stockholders, except for normal and customary compensation and expense allowances payable to officers and directors in the ordinary course of its business consistent with its past practices;
(v) any commencement or settlement of any material litigation by the Company or any of its Subsidiaries;
(w) any material revaluation, or any indication that such a revaluation was merited under GAAP, by the Company of any of its material assets, other than in the ordinary course of business consistent with past practice; or
(ix) announcement of, any agreement, whether in writing negotiation by or otherwise, any entry into any Contract to take do any action of the things described in the preceding clauses (a) through (w) by the Company or any of its Subsidiaries (other than negotiations and agreements with Parent and its representatives regarding the transactions contemplated by this Section 2.7Agreement).
Appears in 1 contract
Absence of Certain Changes or Events. Except Since the Balance Sheet Date, except as contemplated by this Agreement, since the date set forth in Section 3.05 of the Company Balance SheetDisclosure Letter, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date business of the Company Balance Sheethas been conducted in the Ordinary Course of Business consistent with past practice, and there has not 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 on CompanyEffect;
(ib) amendment of any of the Company Charter Documents;
(c) split, combination or reclassification of any shares of its capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any saleissuance, transfer, sale or other disposition of any material properties of its capital stock, or assets grant of any options, warrants or other rights to purchase or obtain (whether realincluding upon conversion, personal exchange or mixed, tangible or intangibleexercise) except in the ordinary course any of business consistent with past practicesits capital stock;
(e) (i) any assumption, guarantee, endorsement declaration or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations payment of any other Person other than those of Company dividends or Company Subsidiaries, distributions on or (ii) any making in respect of any loanof its capital stock or redemption, advance purchase or acquisition of its capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessstock;
(if) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method accounting or accounting practice of accounting principles or practicethe Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, 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;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any Indebtedness except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer or assignment of or grant of any license or sublicense under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) 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 (whether or not covered by insurance) to its property;
(n) capital investment in, or loan to, any other Person;
(o) acceleration, termination, material modification to or cancellation of any material Contract (including any Material Contract) to which the Company is a party or by which it is bound;
(p) material capital expenditures;
(q) imposition of any Encumbrance (other than Permitted Encumbrances) upon any of the Company properties, capital stock or assets, tangible or intangible;
(r) (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or 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 written agreements or required by applicable Law, (ii) change in the terms of employment for any such change required by reason employee or any termination of a concurrent change in GAAP or compliance with any employees for which the applicable requirements of the rules aggregate costs and regulations promulgated by the SECexpenses exceed $100,000, or (iii) any revaluation action to accelerate the vesting or payment of any material assetscompensation or benefit for any current or former employee, includingofficer, without limitationdirector, writing-off notes independent contractor or accounts receivable other than consultant;
(i) hiring or promoting of 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 Ordinary Course of Business; or (ii) adoption, modification or termination of any employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant;
(t) loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(gv) except for the Mergers, adoption of any loss 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;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $50,000, 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 consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or receipt of written notice of by any intention to cancel or otherwise terminateother manner, any identified Contract that would be reasonably likely, individually business or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectPerson or any division thereof;
(hy) as 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 date hereof, (i) Tax liability or reducing any increase or change Tax asset of Parent in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment respect of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock PlansPost-Closing Tax Period; or
(iz) contract to do any agreementof the foregoing, whether in writing or otherwise, to take any action described or omission that would result in this Section 2.7any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth in Schedule 2.9 hereto and except for the Transactions, since the date of the Company Balance SheetMarch 31, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet2006, there has not been:
: (ai) a any Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stockthe Company and its Subsidiaries, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital Company’s stock, or any purchase, redemption or other acquisition by the Company of any of the shares of Company’s capital stock or any other securities or other partnership interests of the Company or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssecurities, or (iii) any amendment split, combination or reclassification of any material term of the Company’s capital stock, (iv) any granting by the Company or its Subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by the Company or its Subsidiaries of any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directorspractice, or employees earning more than $100,000 in base salary annually, any granting by the Company or its Subsidiaries of any increase in severance or termination pay, pay or any material modification entry by the Company or amendment of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby hereby, (v) entry by the Company or its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company or its Subsidiaries with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any issuance of capital stock of the Company or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, or (iiix) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under revaluation by the Company Stock Plans or authorization its Subsidiaries of cash payments in exchange for any Company Options granted under of their respective assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company Stock Plans; or
(i) any agreement, whether or its Subsidiaries other than in writing or otherwise, to take any action described in this Section 2.7the ordinary course of business.
Appears in 1 contract
Sources: Merger Agreement (Multi Link Telecommunications Inc)
Absence of Certain Changes or Events. Except as set forth on Schedule 3.12 of the Company Disclosure Schedule or in the Company Financial Statements, or as otherwise expressly permitted or expressly contemplated by this Agreement, since March 31, 2018, there has not been (i) any change or development in the date business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of the Company Balance Sheetor any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, other than changes required by applicable law or GAAP or regulatory accounting as concurred in by the Company’s independent registered public accounting firm, (iii) any entry by the Company or any of its Subsidiaries into any contract or commitment of (A) more than $100,000 or (B) $50,000 per annum with a term of more than one year, other than loans and Company Subsidiaries have conducted their respective businesses in all material respects loan commitments in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (iiiv) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of the Company or any of the shares of capital stock, its Subsidiaries or any purchaseredemption, redemption purchase or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any optionsits securities, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations practice or with respect to shares tendered in payment for the exercise of stock options or withheld for tax purposes upon the vesting of restricted stock awards or performance share awards or upon the exercise of stock options, (v) establishment or amendment of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofbonus, (i) any increase or change in any insurance, severance, deferred compensation, benefits or bonus paid or made payable to any pension, retirement, profit sharing, stock option (including, without limitation, the granting of their executive officers or directorsstock options, stock appreciation rights, performance awards, or employees earning more than $100,000 in base salary annuallyrestricted stock awards), stock purchase or other employee benefit plan, or any increase in the compensation payable or to become payable to any directors or executive officers of the Company or any of its Subsidiaries, or any contract or arrangement entered into to make or grant any severance or termination pay, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of the Company or any of its Subsidiaries, (vi) any material modification closing agreement, settlement, election or amendment other action made by the Company or any of its Subsidiaries for U.S. federal or state income tax purposes, (vii) any material change in the credit policies or procedures of the Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any respect, (viii) any material acquisition or disposition of any currently effective employmentassets or properties, severance, termination or indemnification agreement or any agreement contract for any such acquisition or policy the benefits of which are contingentdisposition entered into, other than loans and loan commitments, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (iiix) any action taken to acceleratematerial lease of real or personal property entered into, amend other than in connection with foreclosed property or change in the period ordinary course of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7business consistent with past practice.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetSheet and through the date hereof, the Company and its subsidiaries have operated their business in the ordinary course of business consistent with past practice and (a) there has not been a Company Material Adverse Effect and (b) there has not been:
(a) a Material Adverse Effect on Company;
: (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of Company’s or the Subsidiary’s capital stock, or (ii) any purchase, redemption or other acquisition by the Company or the Subsidiary of any of the shares of Company’s capital stock or any other securities of the Company or other partnership interests the Subsidiary or any options, warrants, calls or rights to acquire any such shares or other securities securities, except for repurchases from employees employees, directors or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements or similar agreements, or (iii) any amendment split, combination or reclassification of any material term of any outstanding security;
(c) any (i) any disposing the Company’s or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of businessSubsidiary’s capital stock, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iiiiv) any material change to Company’s by the Company in its accounting methods, principles or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partypractices, exceptexcept as required by concurrent changes in GAAP, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(iv) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required revaluation by applicable laws or regulations, any filing the Company of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material its assets, including, without limitation, writing-including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
, (gvi) the adoption of any new severance, retention, change in control, or deal bonus plan, agreement, or arrangement or amendment or modification or alteration in any respect of any such plan, agreement or arrangement, (vii) any loss modifications, amendments or changes to the Company Charter Documents, or (viii) any acquisition or agreement to acquire by merging or consolidating with, or by purchasing any material equity or voting interest in or a material portion of the assets of, or receipt of written notice of by any intention to cancel other manner, any business or any Person or division thereof, or otherwise terminate, acquire or agree to acquire any identified Contract that would be reasonably likely, individually or in the aggregate, to be assets which are material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7Business.
Appears in 1 contract
Absence of Certain Changes or Events. Except Other than as disclosed in Schedule 3.9 of the Company Disclosure Letter, and except as contemplated by this Agreement, since December 31, 2020 through the date of this Agreement, except as required to respond to Pandemic Measures, each of the Company Balance Sheet, Company and Company Subsidiaries have Group Companies has conducted their respective businesses in all material respects its business in the ordinary course of business. Since the date of the Company Balance Sheet, consistent with past practice and there has not been:
: (a) a any Company Material Adverse Effect on Company;
Effect; (ib) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition by the Company of any of the shares of capital stock Company Common Stock, Company Preferred Stock or any other securities or other partnership interests of the Company or any options, warrants, calls or rights to acquire any such shares Company Common Stock, Company Preferred Stock or other securities except for repurchases from employees or consultants following their termination securities, other than pursuant to the terms of their pre-existing stock option a Company Option, Company Restricted Stock Award or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
Company RSU; (c) any (i) any disposing split, combination or impairment of or permitting to lapse reclassification of any of the shares of Company IP Rights that would be material and adverse to Common Stock or Company or outside the ordinary course of business, Preferred Stock; (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iiid) any material change to Company’s by the Company in its accounting methods, principles or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third partypractices, except, except as required by concurrent changes in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, GAAP or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
Applicable Legal Requirements; (e) any change in the auditors of the Company; (if) any assumptionissuance of shares of Company Common Stock or Company Preferred Stock, guarantee, endorsement other than in connection with the exercise of a Company Option or liability otherwise incurred settlement of a Company RSU; (whether directly, contingently or otherwiseg) for any revaluation by the obligations Company of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Personits assets, including any director, officer or other affiliate sale of Company, assets of the Company other than advances with respect to employees for travel and other reimbursable expenses sales in the ordinary course of business;
; (h) incurred, created or assumed any Indebtedness other than as expressly permitted hereunder or (i) any material Tax election action taken or material change in agreed upon by any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract Group Companies that would be reasonably likely, individually or in the aggregate, to be material to Company prohibited by Section 5.1 (other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
clauses (h) as of the date hereofa), (c), (d), (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwiseand, to take any the extent related to the foregoing clauses, (q) thereof) if such action described in this Section 2.7were taken on or after the date hereof without the consent of Parent.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this AgreementSince January 1, since 2007 and through the date hereof, except as provided in Section 2.7 of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetDisclosure Letter, there has not been:
(a) a any amendment to the Company Operating Agreement or any Subsidiary Charter Documents;
(b) any Material Adverse Effect on Companythe Company or its Subsidiaries;
(i) any split, combination or reclassification of any capital stock, (iic) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company’s or any of its Subsidiaries’ share capital, capital stockstock or other equity interests, or as applicable, except for mandatory distributions made pursuant to the Company Operating Agreement;
(d) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company’s share capital or any capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumptionsplit, guarantee, endorsement combination or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations reclassification of any other Person other than those of Company the Company’s or Company any of its Subsidiaries’ share capital, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer stock or other affiliate of Companyequity interests, other than advances to employees for travel and other reimbursable expenses in the ordinary course of businessas applicable;
(if) any material Tax election resignation or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing termination of any material amended Tax Returnsofficer, any entering into director or member of a closing agreement, settlement the board of or consent to any Tax claim, any surrendering managers of any right to claim a material refund of Taxes, the Company or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, Subsidiary;
(iig) any material change by the Company in any method of accountingits accounting methods, method of accounting principles or practicepractices, except for any such change as required by reason of a concurrent change changes in GAAP or compliance with the applicable requirements and except for certain accounting methods related to accruals for sales commissions as described in Section 2.7(g) of the rules and regulations promulgated Company Disclosure Letter;
(h) any material revaluation by the SEC, or (iii) any revaluation Company of any material of its or its Subsidiaries’ assets, including, without limitation, writing-including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(gi) except in the ordinary course of business and consistent with past practices, (A) creation or incurrence of any Indebtedness, (B) assumption, guarantee, endorsement or otherwise as an accommodation assumption of responsibility for the obligations of any other Person, (C) grant of any loans or advances to any other Person except under, and as permitted by, the Company’s 401(k) plan, or (D) creation of any mortgage, pledge or Lien over any asset having a book or market value in excess of U.S.$150,000;
(j) any damage, destruction or loss not covered by insurance adversely affecting the assets of the Company or its Subsidiaries or materially and adversely affecting the business of the Company or its Subsidiaries;
(i) any issuance, sale or amendment of any of its debt securities or warrants or other rights to acquire any of its debt securities, guarantee of any debt securities of another Person, entry into any “keep well” or other Contract to maintain any financial statement condition of another Person or entry into any arrangement having the economic effect of any of the foregoing, or (ii) any loans, advances (other than routine advances to its employees in the ordinary course of business) or capital contributions to, or investment in, any other Person, other than the Company or any of its Subsidiaries;
(l) any sale, lease, license, pledge or other disposition of or Lien on any of the Company’s or its Subsidiaries’ properties or tangible assets having a book or market value in excess of U.S.$150,000 (other than sales of products and services in the ordinary course of business);
(m) any acquisition by merger or consolidation with, or by purchase of all or a substantial portion of the assets or any stock of, or receipt of written notice of by any intention to cancel or otherwise terminateother manner, any identified Contract business or Person that would be reasonably likely, is material to the Company individually or in the aggregate, to be material to Company other than ;
(n) except for renewals of maintenance and support Contracts entered into in the ordinary course of business consistent with past practices and other than threatened terminations practices, any entry into, modification, acceleration, cancellation or termination of or receipt of notice of termination of, any identified Contract where (or series of related Contracts) which involves a total remaining commitment by or to the Company has cured the underlying cause or any Subsidiary of the threat and such Contract still remains in full force and effectat least U.S.$150,000;
(ho) any (i) adoption, entry into, termination or amendment of any Company Benefit Plan, collective bargaining agreement or employment, severance or similar Contract with any executive officer or key employee (except as required by applicable Legal Requirements), (ii) increase in the compensation or fringe benefits of, or payment of any bonus to, any director, executive officer, employee or consultant or other independent contractor, (iii) amendment or acceleration of the payment, right to payment or vesting of any compensation or benefits, (iv) payment of any benefit not provided for as of the date hereofof this Agreement under any Company Benefit Plan, (iv) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment grant of any currently effective employmentawards under any bonus, severanceincentive, termination performance or indemnification agreement other compensation plan or any agreement arrangement or policy benefit plan, including the benefits grant of which are contingentstock options, stock appreciation rights, stock based or the terms of which are materially alteredstock related awards, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options performance units or restricted stock, or reprice the removal of existing restrictions in any Company Options granted under Benefit Plans or Contracts or awards made thereunder, except for the grant of stock options to new employees pursuant to the Company Stock Plans Option Plan consistent with past practices or authorization (vi) any action to fund or in any other way secure the payment of cash payments in exchange for compensation or benefits under any Company Options granted under Benefit Plan;
(p) any cancellation, compromise, release or waiver of any claims or rights (or series of related claims or rights) with a value exceeding U.S.$150,000;
(q) any settlement or compromise in connection with any proceeding with a value exceeding U.S.$150,000 or otherwise outside the ordinary course of business;
(r) any capital expenditure or other expenditure, or commitment thereof, with respect to property, plant or equipment in excess of U.S.$150,000 in the aggregate for the Company Stock Plansand the Subsidiaries taken as a whole;
(s) material acceleration or material delay in the payment of accounts payable or other Liabilities or in the collection of notes or accounts receivable; or
(it) any agreementauthorization of, whether in writing or otherwiseContract by the Company or any Subsidiary, to take any action of the actions described in this Section 2.7.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated Since December 31, 1997 there has not been (for the purposes of this Section 3(u), the term the "Company" shall include both One Source Industries, LLC, and its predecessor, One Source Industries, Inc.):
(i) Any damage, destruction or loss (whether or not covered by this Agreement, since the date insurance) to tangible assets of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in which has had a materially adverse effect on the ordinary course of business. Since the date Business Condition of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any Any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any Securities of the shares Company or any direct or indirect redemption, purchase or other acquisition by the Company of capital stockSecurities of the Company;
(iii) Any issuance or Transfer by the Company or Seller of any Securities of the Company, or any purchase, redemption or other acquisition agreement of any of character to which the shares of capital stock Company has been a party or by which it has been bound obligating the Company to issue, sell or deliver any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding securitySecurities;
(civ) Any Lien created affecting any (i) any disposing or impairment assets of or permitting to lapse of any Company IP Rights that would be material and adverse to the Company or outside assumed by the Company with respect to any such assets except for purchase money security interests in supplies and inventory acquired by the Company in the ordinary course of business, (ii) disposing of or disclosing (consistent with past practices, except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights for Liens for Taxes not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholeyet delinquent;
(dv) any saleAny Indebtedness or other material liability, transferguarantee or obligation (whether absolute, accrued, contingent, or otherwise) incurred, or other disposition transaction engaged in by the Company, other than in the ordinary course of business, consistent with past practices;
(vi) Any Transfer of any material properties or assets (whether realasset of the Company with a book value in excess of $5,000, personal or mixed, tangible or intangible) except other than inventory in the ordinary course of business consistent with past practices;
(evii) (i) any assumptionAny cancellation, guaranteewithout full payment, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiariesnote, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer loan or other affiliate of obligation owing to the Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(iviii) any material Tax election Any waiver or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering release of any right to or claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, Company;
(iiix) any material Any change in any method of accounting, the method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes any change in depreciation or accounts receivable other than in amortization policies or rates, by the ordinary course of businessCompany from the methods consistently applied throughout the periods covered by the Company Financial Statements;
(gx) any loss of, Any amendment or receipt of written notice termination of any intention to cancel or otherwise terminate, any identified Contract that which would be reasonably likely, individually or in the aggregate, to be material to a Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and if such Contract still remains were in full force and effect;
(h) effect as of the date hereofof this Agreement;
(xi) Any other event, (i) any increase development or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment condition of any character that, in light of the facts and circumstances currently effective employmentknown to Seller, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, Sherlines or the terms of which are materially alteredCompany, upon has had or could have a material adverse effect on the occurrence of a transaction involving Company Business Condition of the nature contemplated hereby or Company (ii) any action taken to accelerate, amend or change the period other than as a result of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansgeneral economic conditions); or
(ixii) any agreementAny Contract, whether other than this Agreement, by which the Company will or could be obligated to undertake or engage in writing or otherwise, to take any action described in this Section 2.7the preceding clauses (i) through (xii).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Westminster Capital Inc)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date set forth in Section 2.9 of the Company Balance SheetSchedule, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheetsince June 30, 1999, there has not been:
: (ai) a any Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its Subsidiaries' capital stock, or any purchase, redemption or other acquisition by Company of any of the shares of Company's capital stock or any other securities of Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment split, combination or reclassification of any material term of Company's or any of its Subsidiaries' capital stock, (iv) any granting by Company or any of its Subsidiaries of any outstanding security;
(c) any (i) any disposing increase in compensation or impairment fringe benefits, except for normal increases of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except cash compensation in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxespractice, or any consent to payment by Company or any extension or waiver of the statutory period its Subsidiaries of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practicebonus, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than bonuses made in the ordinary course of business consistent with past practices and other than threatened terminations of practice, or any identified Contract where granting by Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or its Subsidiaries of any increase in severance or termination pay, pay or any material modification entry by Company or amendment any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving Company of the nature contemplated hereby hereby, (v) entry by Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.19) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Company with the SEC, (vi) any material change by Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (iivii) any action taken to acceleraterevaluation by Company of any of its assets, amend including, without limitation, writing down the value of capitalized inventory or change writing off notes or accounts receivable or any sale of assets of Company other than in the period ordinary course of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7business.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth in Schedule ------------------------------------ -------- 4.10, since the date of Balance Sheet Date, the Company Balance Sheet, Company and Company its Subsidiaries have ---- conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not been:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except business in the ordinary course of business consistent with past practice and there has not been any:
(a) Material Adverse Change in the financial condition, properties assets, liabilities, business, operations or results of operations of the Company or any Subsidiary;
(b) material addition to or modification of employee benefits plans, arrangements or practices;
(ec) (i) any assumptionsale, guarantee, endorsement assignment or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations transfer of any other Person other than those of the material assets of the Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of CompanySubsidiary, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business, consistent with past practice;
(id) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing cancellation of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent indebtedness owed to any Tax claim, any surrendering of any right to claim a material refund of Taxes, the Company or any consent to any extension Subsidiary in an aggregate amount greater than $50,000, or waiver of any rights of similar value to the statutory period of limitation applicable Company or any Subsidiary relating to any material Tax claimof its business activities or properties, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(e) amendment, cancellation or termination of any Contract, license or other instrument material to the Company or any Subsidiary;
(f) failure to repay any material obligation of the Company or any Subsidiary when due;
(g) change in accounting methods, principles or practices by the Company or any loss ofSubsidiary materially affecting its assets, Liabilities, results of operations or receipt of written notice business;
(h) material revaluation by the Company or any Subsidiary of any intention to cancel or otherwise terminateof its assets, including without limitation, any identified Contract that would be reasonably likelymaterial write-offs, individually material increases in any reserves or any write-up of the value of inventory, property, plant, equipment or any other asset;
(i) material damage, destruction or loss (whether or not covered by insurance) affecting any store or office maintained by the Company or any Subsidiary or any other material asset of the Company or any Subsidiary and resulting in a loss in excess of $50,000;
(j) mortgage, pledge or other Encumbrance of any assets of the Company or any Subsidiary, material singly or in the aggregate;
(k) declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, stock or property) with respect to the capital stock or other equity securities of the Company or any Subsidiary or any redemption, purchase or other acquisition of any of the securities of the Company or any Subsidiary, or any other payment to any shareholder of the Company or any Subsidiary in its capacity as a shareholder;
(l) issuance by the Company or any Subsidiary of, or commitment by it to issue, any capital stock or other equity securities or obligations or any securities convertible into or exchangeable or exercisable for capital stock or other equity interests;
(m) indebtedness for borrowed money incurred by the Company or any Subsidiary or any commitment to incur indebtedness for borrowed money entered into by the Company or any Subsidiary, or any loans made or agreed to be material to made by the Company or any Subsidiary other than as set forth on Schedule 4.10; -------------
(n) incurrence of other Liabilities involving $100,000 or more, except in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereofbusiness, (i) or any increase or change in any compensationassumptions underlying, benefits or bonus paid methods of calculating, any bad debt, contingency or made payable other reserves;
(o) payment, discharge or satisfaction of any Liabilities other than the payment, discharge or satisfaction (i) in the ordinary course of business, consistent with past practice, of Liabilities reserved against in the Financial Statements or of Liabilities incurred in the ordinary course, consistent with past practice or (2) of other Liabilities involving $50,000 or less individually and $100,000 or less in the aggregate;
(p) increase in the compensation of officers or employees (including any such increase pursuant to any of their executive officers bonus, pension, profit sharing or directors, other plan or employees earning more than $100,000 in base salary annually, commitment) or any increase in the compensation payable or to become payable to any officer or employee or any severance or termination pay, or any material modification or amendment except for increases as required by law;
(q) granting of any currently effective employmentbonus, severanceincentive compensation, termination service award or indemnification agreement other like benefit to any officer or any agreement employee except in accordance with plans or policy the benefits of which are contingent, arrangements disclosed on Schedule 4.10; or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or-------------
(ir) any agreement, whether in writing oral or otherwisewritten, by the Company or any Subsidiary to take do any action described in of the foregoing; except as expressly required by this Section 2.7.Agreement or any Transaction Document. ------
Appears in 1 contract
Absence of Certain Changes or Events. Except as From the date of the most recent Company balance sheet contained in the Company SEC Documents filed prior to the date hereof (the “Company Balance Sheet”) to the date of this Agreement, (i) each of the Company Entities has conducted its respective operations only in the ordinary course consistent with past practice, (ii) the Company has not suffered a material adverse change and (iii) no Company Entity has engaged in any material transaction or entered into any material agreement or commitments outside the ordinary course of business (except for the transactions contemplated by this Agreement, since ). From the date of the Company Balance Sheet, Sheet to the date of this Agreement the Company and the Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, there has not beennot:
(a) a Material Adverse Effect on Company;
(i) any split(A) other than dividends and distributions by a direct or indirect wholly owned Company Subsidiary to the Company or another wholly owned Subsidiary, combination or reclassification of any capital stockdeclared, (ii) any declaration, setting set aside or payment of paid any dividend dividends on, or made any other distribution (whether in cash, stock or property) distributions in respect of, any of the shares its capital stock, (B) split, combined or reclassified any of its capital stock, or (C) except pursuant to agreements entered into with respect to the Company Stock Plans, purchased, redeemed or otherwise acquired any purchase, redemption or other acquisition of any of the shares of capital stock of the Company or any of the Company Subsidiaries or any other securities or other partnership interests thereof or any optionsrights, warrants, calls warrants or rights options to acquire any such shares or other securities;
(ii) issued, delivered, sold, pledged or otherwise encumbered or subjected to any Lien any shares of its capital stock, any other voting securities except for repurchases from employees or consultants following their termination pursuant any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, other than the issuance of shares by one Company Subsidiary to the terms Company or any Company Subsidiary or the issuance of shares of Company Common Stock (A) upon the exercise of Company Stock Options under the Company Stock Plans or in connection with other awards under the Company Stock Plans, in each case, in accordance with their pre-existing stock option or purchase agreementsterms, (B) under the Company Stock Purchase Plan, (C) as matching contributions to the Employees’ Voluntary Investment and Savings Plan of the Company, or (D) the issuance of Company Rights under the Company Rights Agreement in connection with the issuance of Company Common Stock permitted pursuant to this Agreement.
(iii) (A) amended its Certificate of Incorporation or Bylaws (or other comparable organizational documents), (B) except as represented in Section 3.1(t), amended or taken any amendment other action with respect to the Company Rights Agreement, (C) merged or consolidated with any person or (D) taken or failed to have taken any actions that would constitute a violation of any applicable Law, except for such violations as did not result in a material term of any outstanding securityadverse effect on the Company;
(civ) sold, leased, licensed, mortgaged or otherwise encumbered or subjected to any (i) any disposing Lien or impairment of or permitting to lapse otherwise disposed of any of its properties or assets that were material to the Company IP Rights that would be material and adverse to Company or outside Entities taken as a whole, other than dispositions in the ordinary course of business, business consistent with past practice and the granting of Permitted Liens and Liens required under then existing bank agreements;
(iiv) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other entered into commitments for capital expenditures involving more than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) $1,000,000 in the aggregate, as would not be material except pursuant to the capital plan of the Company and Company Subsidiaries, taken as a wholepreviously provided to Parent;
(dvi) incurred any indebtedness for money borrowed (whether evidenced by a note or other instrument, pursuant to a financing lease, sale, transfer-leaseback transaction, or otherwise), other disposition than intercompany indebtedness, indebtedness under the Company’s then existing credit agreement in a manner consistent with past practices, and other indebtedness of up to $3,500,000 in the aggregate;
(vii) except as set forth on Section 3.1(g)(vii) of the Company Disclosure Letter, as required by Law or as required by contracts or plans entered into then in existence (and previously disclosed to Parent) and subject to Sections 3.1(g)(i) and (ii), (A) except for normal increases in salary and wages in the ordinary course of business consistent with the past practice, granted any material properties increase in the compensation or assets benefits payable or to become payable by the Company or any Company Subsidiary to any current or former director, officer, employee or consultant; (whether realB) adopted, personal entered into, amended or mixedotherwise increased, tangible repriced or intangibleaccelerated the payment or vesting of the amounts, benefits or rights payable or accrued or to become payable or accrued under any Company Benefit Plan or Foreign Plan; (C) entered into or amended any employment, severance, change in control agreement or any similar agreement or any collective bargaining agreement or, except as required in accordance with the then existing written policies of the Company, granted any severance or termination pay to any officer, director, consultant or employee of the Company or any Company Subsidiaries (except in the ordinary course of business consistent with past practicesthe Company’s severance policy then in effect); or (D) paid or awarded any pension, retirement, allowance or other non-equity incentive awards, or other employee or director benefit not required by any then outstanding Company Benefit Plan or Foreign Plan;
(eviii) changed the accounting principles used by it unless required by GAAP (ior, if applicable with respect to foreign subsidiaries, the relevant foreign generally accepted accounting principles);
(ix) acquired by merging or consolidating with, by purchasing any assumptionequity interest in or a portion of the assets of, guaranteeor by any other manner, endorsement any business or liability any corporation, partnership, association or other business organization or division thereof, or otherwise incurred (whether directly, contingently or otherwise) for the obligations acquired any material amount of assets of any other Person person (other than those the purchase of assets from suppliers or vendors in the ordinary course of business consistent with past practice);
(x) amended any Tax Returns except as required by Law or as will not have or result in a material adverse effect on the Company or, except as did not have a material adverse effect on the Company and consistent with past practice, made or Company Subsidiariesrescinded any express or deemed election or settled or compromised any claim or action relating to Taxes, or changed any of its methods of accounting or of reporting income or deductions for Tax purposes unless required by GAAP (or, if applicable with respect to foreign subsidiaries, the relevant foreign generally accepted accounting principles) or by Law;
(xi) satisfied any claims or liabilities, other than (A) the satisfaction of such claims or liabilities, in the ordinary course of business consistent with past practice, in accordance with their terms, or (iiB) the satisfaction of claims or liabilities reflected or reserved against in the financial statements (or the notes thereto) of the Company included in the Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice;
(xii) made any making of any loanloans, advance advances or capital contribution to contributions to, or investment in investments in, any Personother person, including except for loans, advances, capital contributions or investments between any director, officer wholly owned Company Subsidiary and the Company or other affiliate of Company, other than another wholly owned Company Subsidiary and except for employee or director advances to employees for travel and other reimbursable expenses in the ordinary course of businessbusiness consistent with past practice;
(ixiii) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and practice, (A) modified, amended or terminated any material contract in a manner materially adverse to the Company or any Company Subsidiary, (B) waived, released, relinquished or assigned any material contract (or any of the Company’s or any Company Subsidiary’s rights thereunder), right or claim, or (C) canceled or forgiven any indebtedness owed to the Company or any Company Subsidiary (other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectintercompany indebtedness);
(hxiv) as taken any action that would jeopardize qualification of the date hereof, Merger as a reorganization within the meaning of Section 368(a) of the Code;
(ixv) sold or otherwise disposed of any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, business or any increase in severance stock or termination pay, or any material modification or amendment other equity interest of any currently effective employment, severance, termination or indemnification agreement or subsidiary;
(xvi) entered into any agreement or policy the benefits new line of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plansbusiness; or
(ixvii) authorized, or committed or agreed to take, any agreementof the foregoing actions; provided, whether however, that the limitations set forth in writing or otherwise, the second sentence of Section 3.1(g) do not apply to take any action described in this Section 2.7transaction to which the only parties are the Company and any wholly owned subsidiaries of the Company.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreementset forth in the Disclosure Schedule, since the date of the Company Balance SheetSheets, Company and Company neither MSWC nor any of the Subsidiaries have conducted their respective businesses in all has (i) suffered any material respects damage, destruction or casualty loss or (ii) suffered any Material Adverse Effect. Except as set forth in the ordinary course of business. Since Disclosure Schedule, since the date of the Company Balance SheetSheets, (i) the Business of MSWC and the Subsidiaries (present or past) has been conducted only in the ordinary and usual course consistent with past practice and (ii) there has not beenbeen nor has there been an agreement to take any of the following actions:
(a) a Material Adverse Effect on Company;
(i) any incurrence or assumption of any material obligation or liability;
(ii) the declaration, payment or setting aside of amounts for payment of, any dividends on or other distributions to or for any stockholders (whether in cash, shares or property), the issuance, delivery, sale, or authorization, proposal or agreement to, or commitment to the issuance, delivery, or sale of any shares of capital stock of any class, or any securities convertible into capital stock, or the grant of any options, warrants, calls, conversion rights, commitments, pledges, Contracts, restrictions or rights of any character obligating MSWC or any of the Subsidiaries to issue any such shares or other securities, the split, combination or reclassification of any shares of capital stock, (ii) any declaration, setting aside stock or payment issuance or authorization of the issuance of any dividend on, or other distribution (whether in cash, stock or property) securities in respect of, any in lieu of the or in substitution for shares of capital stock, the repurchase or any purchaseacquisition, redemption directly or other acquisition indirectly, of any of the shares of any capital stock, or an amendment to the terms of any capital stock or any other securities or other partnership interests of MSWC or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to of the terms of their pre-existing stock option or purchase agreements, or Subsidiaries;
(iii) any amendment change to any of the accounting principles or practices used by MSWC or any material term of any outstanding securitythe Subsidiaries;
(civ) any (i) acquisition or agreement to acquire by merger or consolidation with, purchase of a substantial portion of the assets of, or through any disposing other manner, any business or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;division thereof; or
(dv) any sale, lease, license, transfer, mortgage, pledge, encumbrance or other disposition of any material properties assets or assets (whether realthe grant or assignment of any security interest, personal indebtedness or mixedclaim, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or prior practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than in the ordinary course of business consistent with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company of the nature contemplated hereby or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.
Appears in 1 contract
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance SheetSheet through the date hereof, except as set forth in SECTION 2.5 of the Company Disclosure Letter there has not been, accrued or arisen:
(a) a any Material Adverse Effect on the Company;
(ib) any splitacquisition by the Company or any Subsidiary of, combination or reclassification agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company and its Subsidiaries, taken as a whole, or, to the Knowledge of the Company, any solicitation of, or participation in, any negotiations or discussions with respect to any of the foregoing;
(c) any entry into, amendment or termination by the Company or any of its subsidiaries of any capital stockContract, agreement in principle, letter of intent, memorandum of understanding or similar agreement with respect to any joint venture, strategic partnership or alliance;
(iid) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares Company's or any of its Subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the shares of Company's capital stock or any other securities of the Company or other partnership interests its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(ce) any (i) any disposing split, reverse split, combination or impairment of or permitting to lapse reclassification of any Company IP Rights that would be material and adverse to Company of the Company's or outside the ordinary course any of business, (ii) disposing of or disclosing (its Subsidiaries' capital stock except as necessary set forth in SECTION 2.5(e) of the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a wholeDisclosure Letter;
(df) any salegranting by the Company or any of its Subsidiaries, transferwhether orally or in writing, or other disposition of any material properties increase in compensation or assets fringe benefits (whether real, personal or mixed, tangible or intangible) except for normal increases of cash compensation to current non-officer employees in the ordinary course of business consistent with past practices;
(epractice) (i) or any assumption, guarantee, endorsement payment by the Company or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations any of its Subsidiaries of any other Person other than those of Company or Company Subsidiaries, or bonus (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writingbonuses made to current non-off notes or accounts receivable other than in the ordinary course of business;
(g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company other than officer employees in the ordinary course of business consistent with past practices and other than threatened terminations practice) or any change to a Company Employee Plan by the Company or any of its Subsidiaries that would increase current or future accruals of participants under any identified Contract where such plan or would otherwise increase the expense of operating such plan by the Company has cured or any of its Subsidiaries or any change by the underlying cause Company or any of the threat and such Contract still remains in full force and effect;
(h) as its Subsidiaries of the date hereofseverance, (i) any increase or change in any compensation, benefits termination or bonus paid policies and practices or made payable any change to or entry by the Company or any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of its Subsidiaries into any currently effective employment, severance, termination termination, change in control or indemnification agreement or or, except as set forth in SECTION 2.5(f) of the Company Disclosure Letter, any agreement or policy the benefits of which are contingent, contingent or the terms of which are materially altered, altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (either alone or upon the occurrence of additional or subsequent events), or any grant of any share options or share schemes or any issue of shares or securities or entitlement to any shares or securities to any employee or associated person;
(iig) any action taken termination, consent or amendment with respect to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice Company Options granted under the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action described in this Section 2.7.Material Contract;
Appears in 1 contract
Sources: Merger Agreement (Loudeye Corp)
Absence of Certain Changes or Events. Except as contemplated by Since November 26, 2005, no events, changes, conditions or developments have occurred which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. From November 26, 2005 to the date of this Agreement, since the date of (i) the Company Balance Sheet, Company and the Company Subsidiaries have conducted carried on and operated their respective businesses in all material respects in the ordinary course of business. Since the date of the Company Balance Sheet, and (ii) there has not beenbeen no:
(a) a Material Adverse Effect on Company;
(i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of the capital stock of the Company (other than a regular annual cash dividend on the Shares and dividends declared or paid by any Company Subsidiary to any other Company Subsidiary or to the Company) or (ii) issuance, sale, grant, disposal of, pledge or other encumbrance by the Company or any Company Subsidiary, or any authorized or proposed issuance, sale, grant, disposition or pledge or other encumbrance by the Company or any Company Subsidiary of, any shares of the Company’s capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of the Company’s capital stock, or the grant by the Company or any purchase, redemption or other acquisition Company Subsidiary of any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of the shares of Company’s capital stock or any other securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the Company’s capital stock, other partnership interests or any options, warrants, calls or rights than upon exercise of Company Options and to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant fund the Company’s matching contribution to the terms of their pre-existing stock option or purchase agreements, or (iiiCompany’s 401(k) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside plan in the ordinary course of business,
(b) redemption or other acquisition by the Company of any of its capital stock,
(c) stock split, reverse stock split, combination or reclassification of the Shares,
(iid) disposing creation, incurrence or assumption of any indebtedness for borrowed money, issuance of any note, bond or disclosing other debt security, or guarantee of any indebtedness (except as necessary other than borrowings under the Company’s existing letter of credit and line of credit facilities and guarantees of Real Property Leases in the conduct ordinary course of its business), in such cases in excess of $2,500,000 in the aggregate or any loans, advances (other than advances to employees of the Company or any Company Subsidiary in the ordinary course of business) or capital contributions by the Company or any Company Subsidiary to any other Person other than to any of the Company and the Company Subsidiaries,
(e) sale, transfer, license, mortgage, encumbrance or other disposal of any of the Company’s properties or assets with a value in excess of $3,000,000 to any Person other than representatives the Company or a wholly-owned Company Subsidiary, or cancellation, release or assignment of Parent any trade secret indebtedness for borrowed money in excess of $3,000,000 to any such Person;
(f) grant of a license (whether written or oral) to, or any other rights with respect to, any Company Intellectual Property Rights not theretofore a matter of public knowledge to any party Person that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to the Company and Company Subsidiaries, its Subsidiaries when taken as a whole;
(dg) any salematerial acquisition or investment by the Company or any Company Subsidiary (other than purchases of inventory, transfer, or supplies and other disposition assets in the ordinary course of any material properties or assets (whether real, personal or mixed, tangible or intangible) except business and investments made in accordance with the Company’s cash management policies in the ordinary course of business consistent with past practicespractice), whether by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchase or exclusive license of any property or assets, of or in any Person other than a wholly-owned Company Subsidiary or to the extent contemplated by the Company’s capital expenditure budget for Fiscal Year 2006 (as most recently updated if applicable), a copy of which has been provided to Parent prior to the date of this Agreement, or for the following fiscal year of the Company, if and to the extent applicable;
(eh) (i) any assumption, guarantee, endorsement increase in the rate or liability otherwise incurred (whether directly, contingently or otherwise) for terms of compensation payable by the obligations of any other Person other than those of Company or any of the Company SubsidiariesSubsidiaries to any of their respective directors, officers or employees whose annual base salary exceeds $150,000, (ii) employment or severance agreement entered into, or grant or increase by the Company or any making Company Subsidiary in the rate or terms of any loanbonus, advance pension, severance or capital contribution other employee benefit plan, policy, agreement or arrangement with, for or in respect of any of their respective directors, officers or employees whose annual base salary exceeds $150,000 or any severance or termination payment to any such Person or investment (iii) establishment, adoption, entrance into or termination by the Company or any Company Subsidiary of any collective bargaining agreement or Benefit Plan or any employee benefit plan, policy or arrangement or amendment or waiver of any performance or vesting criteria or any acceleration of vesting, exercisability or funding of any of the foregoing, except in any Personsuch case (x) as required pursuant to the terms of plans or agreements in effect on the date of this Agreement, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses (y) occurring in the ordinary course of businessbusiness and, in the aggregate, consistent with past practice or (z) required by Law;
(i) any material Tax election amendment to the Company Certificate or Company By-Laws;
(j) material change by the Company in any Tax electionaccounting methods, any material change in annual Tax accounting period principles or method of Tax accounting other than practices except as required by GAAP;
(i) except as required by applicable laws Law, change by the Company or regulations, any filing Company Subsidiary in election in respect of Taxes or any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund accounting method in respect of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated entry by the SECCompany or any Company Subsidiary into any tax allocation agreement, tax sharing agreement, closing agreement, or (iii) settlement or compromise by the Company or any revaluation Company Subsidiary of any material assetsclaim, includingnotice, without limitation, writing-off notes audit report or accounts receivable other than assessment in respect of Taxes individually in excess of $500,000 or in the ordinary course aggregate in excess of business$2,000,000;
(gl) write up, write down or write off the book value by the Company or any loss of, or receipt of written notice Company Subsidiary of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likelyassets, individually or in the aggregate, to be material to for the Company other than and the Subsidiaries taken as a whole, in the ordinary course excess of business consistent $1,000,000, except in accordance with past practices and other than threatened terminations of any identified Contract where Company has cured the underlying cause of the threat and such Contract still remains in full force and effectGAAP consistently applied;
(hm) as of subject to Section 6.2(c), any action taken by the date hereofCompany or any Company Subsidiary to exempt any Person (other than Parent or Merger Sub) or any action taken by such Person from, or make such Person or action not subject to, (i) any increase or change in any compensation, benefits or bonus paid or made payable to any the provisions of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company Section 203 of the nature contemplated hereby DGCL, if applicable, or (ii) any action taken other state takeover law or state law that purports to accelerate, amend limit or change restrict business combinations or the period of vesting ability to acquire or exercisability of options or restricted stock, or reprice Company Options granted under vote shares;
(n) any layoff by the Company Stock Plans or authorization of cash payments in exchange for any Company Options granted under Subsidiary of employees that would implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended;
(o) any settlement of litigation by the Company Stock Plansor any Company Subsidiary that is not covered by insurance for an amount in excess of $1,000,000 per litigation; or
(ip) any agreementagreement or commitment, whether in writing or otherwise, to take any action described in this Section 2.7clauses (a) through (o) above.
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Sources: Merger Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the Merger Agreement or any transactions or developments contemplated thereby, from the date of this Agreement until the Company Balance Sheet, Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business. Since the date completion of the Company Balance SheetClosing (as described below) the Corporation will, there has not been:
(a) a Material Adverse Effect on Company;
other than as disclosed in writing to CBC, not: (i) incur any splitliability or obligation whatsoever, combination secured or reclassification of any capital stockunsecured, (ii) any declarationdirect or indirect, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security;
(c) any (i) any disposing or impairment of or permitting to lapse of any Company IP Rights that would be material and adverse to Company or outside the ordinary course of business, (ii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than representatives of Parent any trade secret or other Intellectual Property Rights not theretofore a matter of public knowledge to any party that is not subject to a nondisclosure or similar agreement, or (iii) any material change to Company’s or any Company Subsidiary’s rights to use Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iii) in the aggregate, as would not be material to Company and Company Subsidiaries, taken as a whole;
(d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices;
(e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of Company or Company Subsidiaries, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of Company, other than advances to employees for travel and other reimbursable expenses in the ordinary course of business;
(i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary and usual course of its business;
; (gii) enter into any loss ofcontracts or agreements whatsoever, other than in the ordinary and usual conduct and course of its business; (iii) change any of its accounting methods, principles, practices or policies; (iv) cease to operate its properties, if any, or receipt fail to maintain any of written notice its properties, rights and assets consistently with past practices; (v) sell or otherwise in any way alienate or dispose of any intention to cancel or otherwise terminate, any identified Contract that would be reasonably likely, individually or in the aggregate, to be material to Company of its assets other than in the ordinary course of business and in a manner consistent with past practices and practices; (vi) modify its Certificate of Incorporation, Bylaws or capital structure; (vii) make any dividend to any of its shareholders or to any affiliate or associate thereof, or reserve or declare any dividend; (viii) other than threatened terminations the ordinary course of business, grant to any customer any special allowance or discount, or change its pricing, credit or payment policies; (ix) make any loan or advance, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of any identified Contract where Company has cured person, or (x) purchase or otherwise acquire any shares or other equity security, as the underlying cause of case may be, in any person. The Corporation further represents that, except as described in its SEC Reports, there have not been any transactions, agreements, arrangements or payments (including, without limitation, salaries, bonuses, royalties or fees) relating to or affecting the threat and such Contract still remains in full force and effect;
(h) as of the date hereof, Corporation or its business: (i) involving any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors, or employees earning more than $100,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Company related entity of the nature contemplated hereby or Corporation, (ii) involving any action taken to acceleratecurrent or former director, amend or change officer, shareholder of the period of vesting or exercisability of options or restricted stockCorporation, or reprice Company Options granted under (iii) involving any member of the Company Stock Plans or authorization immediate family of cash payments in exchange for any Company Options granted under the Company Stock Plans; or
(i) any agreement, whether in writing or otherwise, to take any action individual described in this Section 2.7clause (ii) above, (iv) involving any other person not acting at arm's length with the Corporation or (v) not otherwise at arm's length.
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