Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has not occurred: (a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS; (b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group; (c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS; (d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ; (e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees; (f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below; (g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice; (h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options; (i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities; (j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business; (k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000; (l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice; (m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter; (n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or (o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Seagate Software Inc), Agreement and Plan of Reorganization (Seagate Technology Inc)
Absence of Certain Changes or Events. Except as disclosed Since February 7, 2014, the Acquired Companies and their respective Subsidiaries have conducted their respective businesses, in all material respects, only in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreementordinary course consistent with past practice, since the VERITAS Financial Statements Balance Sheet Date and there has not occurredbeen:
(a) any change issuance or event which could reasonably be expected award of any equity awards or other equity-based awards in respect of any Equity Interests of any Acquired Company or any of its Subsidiaries to have a Material Adverse Effect on VERITAS; providedany director, however, that in no event will a change in the trading price officer or employee of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASsuch Acquired Company or any of its Subsidiaries;
(b) except as required by the terms of any amendments of the Acquired Company Benefit Plans or changes by applicable Law or in the Certificate ordinary course of Incorporation business, (i) any granting by Seller, any Acquired Company or Bylaws any of its Subsidiaries to any Business Employee of any member increase in compensation, bonus or other benefits, (ii) any granting by Seller, any Acquired Company or any of its Subsidiaries to any Business Employee of any increase in severance or termination pay, (iii) any entry by any Acquired Company or any of its Subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any Business Employee, or (iv) any establishment, adoption, entry into, amendment or modification of any Acquired Company Benefit Plan for the VERITAS Groupbenefit of any Business Employee;
(c) any damagechange in any material respect in accounting methods, destruction principles or practices by any Acquired Company or any of its Subsidiaries affecting its assets, liabilities or business, other than changes after the date hereof to the extent required by a change in GAAP or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASregulatory accounting principles;
(d) any redemption, repurchase material Tax election or other acquisition of shares change in or revocation of any member of the VERITAS Group (other than pursuant material Tax election, amendment to arrangements with employees or consultants)any material Tax return, or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) closing agreement with respect to the capital stock Taxes, or settlement or compromise of any member material income Tax liability by any Acquired Company or any of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business its Subsidiaries;
(e) any material increase change in its investment or modification of the compensation risk management or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;other similar policies; or
(f) other than as required by applicable statute any agreement or governmental regulation, any material increase in commitment (contingent or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rightsotherwise) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to do any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.), Equity Purchase Agreement (RCS Capital Corp)
Absence of Certain Changes or Events. Except as disclosed From the date of Parent’s most recent audited balance sheet included in the ------------------------------------ VERITAS its Parent SEC Documents filed prior to Filings through the date of this Agreement, since except as contemplated by this Agreement or as set forth on Section 5.9 of the VERITAS Financial Statements Balance Sheet Date there has not occurredParent Disclosure Letter:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedeach of Parent, howeverParent Operating Partnership, that in no event will a change REIT Merger Sub, Partnership Merger Sub and each other Parent Subsidiary has conducted its business in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;ordinary course consistent with past practice, and, prior to the date hereof there has not been:
(bi) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any shares of the VERITAS Employeescapital stock or other equity interests of Parent or any Parent Subsidiary, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, regular quarterly dividends consistent with past practice;
(hii) any alteration in repurchase, redemption or other acquisition by Parent or any term Parent Subsidiary of any outstanding shares of capital stock or rights to acquire other equity interests of Parent or any Parent Subsidiary or any securities or other equity interests convertible into or exercisable for any shares of capital stock or other equity interests of Parent or any member Parent Subsidiary, other than (A) the redemption or exchange of Parent Partnership Units pursuant to and in accordance with the provisions of the VERITAS GroupParent Partnership Agreement, including(B) the withholding of Parent Common Shares to satisfy withholding Tax obligations with respect to any restricted shares and RSUs under the Parent Equity Plans, but not limited to, acceleration of and (C) the vesting or any change in the terms of any outstanding stock options;
(i) other than acquisition by Parent in the ordinary course of business, business consistent with past practicepractice pursuant to the terms of the Parent Equity Plans upon termination of employment or service of an award holder;
(iii) any split, combination, subdivision or reclassification of any capital stock or other equity interests, or any issuance of any other securities or equity interests in respect of, in lieu of or in substitution for share of capital stock or other equity interests, of Parent or any Parent Subsidiary;
(iv) any (A) amendment to the Parent Charter, Parent Bylaws or other organizational documents of Parent; or (B) amendment to the articles or certificates of incorporation, bylaws or other organizational documents of any Parent Subsidiary;
(v) except as required to comply with Law or any Parent Benefit Plan, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group grant of any debt severance, termination pay, retention, or change in control benefits to any current or former director, employee or other individual service provider of Parent or any personParent Subsidiary, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance any entry into any employment, change in control, deferred compensation or sale by other similar agreement, plan, arrangement or policy (or any member material amendment to any such agreement, plan arrangement or policy) with any current or former director or employee of the VERITAS Group of Parent or any securities convertible into or exchangeable for their respective debt securities; or Parent Subsidiary, (C) issuance any increase in the compensation or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of benefits payable under any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (Parent Benefit Plan other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than increases in the ordinary course of business consistent with past practice, (D) recognition of any labor union, (E) any establishment, adoption, entry into, amendment, modification or termination of any collective bargaining agreement, (F) any establishment, adoption, entry into, termination or amendment or modification in any material respect, of any material Parent Benefit Plan or (G) the taking of any action to accelerate any material compensation or benefits, including vesting, funding and payment or the making of any material determinations, under any collective bargaining agreement, Parent Equity Plan or Parent Benefit Plan;
(mvi) any transfer material change in Parent’s method of accounting or grant of a right under the VERITAS IP Rights, other than those transferred accounting principles or granted in the ordinary course of business, consistent with past practicepolicies, except for any grant such change required by reason of a right to source code change in GAAP or grant of any exclusive rights to any VERITAS IP Rightsby Regulation S-X under the Exchange Act, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding as approved by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASParent’s independent accountants; or
(ovii) any agreement by settlement or remediation of any member of the VERITAS Group to take material Claim against or affecting Parent or a Parent Subsidiary; and
(b) there has not been any of the actions described Parent Material Adverse Effect or any effect, event, development or circumstance that, individually or in the preceding clauses (a) through (n) (aggregate with all other than the transactions contemplated by this Agreement or the Ancillary Agreements)effects, events, developments and changes, would reasonably be expected to result in a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Global Net Lease, Inc.), Merger Agreement (Necessity Retail REIT, Inc.)
Absence of Certain Changes or Events. Except as disclosed in the set forth on Schedule ------------------------------------ VERITAS SEC Documents filed prior to -------- 4.8, since the date of this Agreementthe Latest Balance Sheet, each of the Company and the --- Company Subsidiaries has conducted its business only in the ordinary course consistent with past custom and practices. Except as set forth on Schedule 4.8, ------------ since the VERITAS Financial Statements date of the Latest Balance Sheet Date Sheet, there has not occurredbeen any:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price operations, condition (financial or otherwise), operating results, assets, liabilities, employee, customer or supplier relations or business prospects of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASthe Company or any Company Subsidiary;
(b) damage, destruction or loss of any amendments property owned or changes leased by the Company or any Company Subsidiary, whether or not covered by insurance, having a replacement cost or fair market value in excess of $100,000.00 in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupaggregate;
(c) any damagevoluntary or involuntary sale, destruction to or loss of VERITAS assets not covered by insurancetransfer, which would have a Material Adverse Effect on VERITAS;
(d) any redemptionsurrender, repurchase cancellation, abandonment, waiver, release or other acquisition of shares disposition of any member of kind by the VERITAS Group (other than pursuant to arrangements with employees or consultants), Company or any declaration, setting aside or payment Company Subsidiary of any dividend or other distribution (whether in cashright, stock or property) with respect to the capital stock of any member of the VERITAS Group orpower, with respect to dividends or other distributions of cash claim, debt, asset or property arising from (having a replacement cost or fair market value in excess of $100,000.00 in the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employeesaggregate), except in the ordinary course of the business, business consistent with past practice custom and necessary to respond to third party solicitation of VERITAS Employeespractices;
(fd) strike, picketing, boycott, work stoppage, union organizational activity, allegation, charge, written complaint of employment discrimination or other than as required by applicable statute labor dispute or governmental regulationsimilar occurrence that might reasonably be expected to adversely affect the Company, any material increase in a Company Subsidiary or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowBusiness;
(ge) any sale of a material amount of loan or advance by the VERITAS Assets, Company or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights Company Subsidiary to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practicecustom and practices and travel and other business-related advances to employees of the Company and Company Subsidiaries in the ordinary course of business;
(f) notice (formal or otherwise) of any liability, potential liability or claimed liability relating to environmental matters;
(g) declaration, setting aside, or payment of any dividend or other distribution in respect of the Company's or a Company Subsidiary's capital stock or any direct or indirect redemption, purchase, or other acquisition of the Company's or any Company Subsidiary's capital stock, or the payment of principal or interest on any note, bond, debt instrument or debt to any Affiliate of the Company or any Company Subsidiary;
(h) incurrence by the Company or any Company Subsidiary of debts, liabilities or obligations except current liabilities incurred in connection with or for services rendered or goods supplied in the ordinary course of business consistent with past custom and practices, liabilities on account of taxes and governmental charges (but not penalties, interest or fines in respect thereof), and obligations or liabilities incurred by virtue of the execution of this Agreement;
(i) issuance by the Company or any Company Subsidiary of any notes, bonds, or other debt securities or any equity securities or securities convertible into or exchangeable for any equity securities;
(j) entry by the Company or any Company Subsidiary into, or material amendment or termination of, any material commitment, contract, agreement, or transaction, other than in the ordinary course of business and other than expiration of contracts in accordance with their terms;
(k) loss or, to the knowledge of the Stockholders or the Company, threatened loss of, or any material reduction or, to the knowledge of the Stockholders or the Company, threatened material reduction in revenues from, any client of the Company or any Company Subsidiary who accounted for revenues during the last twelve months in excess of $250,000.00, or change in the relationship of the Company or any Company Subsidiary with any client or Governmental Authority which might reasonably be expected to materially and adversely affect the Company, any Company Subsidiary or the Business;
(l) change in accounting principles, methods or practices (including, without limitation, any change in depreciation or amortization policies or rates) utilized by the Company or any Company Subsidiary;
(m) discharge or satisfaction by the Company or any transfer Company Subsidiary of any material liability or grant encumbrance or payment by the Company or any Company Subsidiary of a right under the VERITAS IP Rightsany material obligation or liability, other than those transferred current liabilities paid in its ordinary course of business consistent with past custom and practices;
(n) sale, lease or granted other disposition by the Company or any Company Subsidiary of any tangible assets other than in the ordinary course of business, consistent with past practiceor sale, except for assignment or transfer by the Company or any grant of a right to source code or grant Company Subsidiary of any exclusive rights trademarks, service marks, trade names, corporate names, copyright registrations, trade secrets or other intangible assets or disclosure of any proprietary confidential information of the Company or any Company Subsidiary to any VERITAS IP Rightsperson other than Compass, each of which shall be set forth in Section 3.09(m) of and the VERITAS Disclosure Letterother Founding Companies and their respective officers, employees and agents;
(no) capital expenditures or commitments therefor by the Company or any labor dispute withCompany Subsidiary in excess of $100,000.00 individually or $200,000.00 in the aggregate;
(p) mortgage, pledge or other encumbrance of any asset of the Company or any Company Subsidiary or creation of any easements, Liens or other interests against or on any of the Real Property (hereinafter defined);
(q) adoption, amendment or termination of any Employee Plan (hereinafter defined) or increase in the benefits provided under any Employee Plan, or charge of unfair labor practice by, promise or commitment to undertake any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASforegoing in the future; or
(or) any agreement by any member of the VERITAS Group to take any of the actions described an occurrence or event not included in the preceding clauses (a) through (nq) that has resulted or is expected to result in a material adverse effect on the business, operations, property, assets, condition (other than financial or otherwise), operating results, liabilities, employee, customer or supplier relations or business prospects of the transactions contemplated by this Agreement Company or the Ancillary Agreementsany Company Subsidiary (a "Company Material Adverse Effect").
Appears in 2 contracts
Sources: Stock Purchase Agreement (Compass International Services Corp), Stock Purchase Agreement (Compass International Services Corp)
Absence of Certain Changes or Events. Except as disclosed contemplated by this Agreement and as set forth in Section 3.8 of the Disclosure Schedule, since December 31, 1999, neither VCI nor any of its Subsidiaries has entered into any transaction that is not in the ------------------------------------ VERITAS SEC Documents filed prior to the date Ordinary Course of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has not occurredBusiness or has:
(a) suffered any change Material Adverse Effect or had any event occur which could reasonably would be expected to result in a Material Adverse Effect;
(b) incurred any material obligation or liability for borrowed money other than in the Ordinary Course of Business;
(c) discharged or satisfied any lien or encumbrance or paid any obligation or liability other than (i) current liabilities reflected in the Most Recent VCI Balance Sheet or (ii) those incurred in the Ordinary Course of Business since the date of the Most Recent VCI Balance Sheet;
(d) made any material amendment to or termination of any contract or lease or done any act or omitted to do any act which would cause a breach of any contract or lease where such breach would reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Effect;
(e) suffered any material increase loss of personal or real property in or modification excess of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except $50,000 in the ordinary course aggregate, or waived any rights of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employeesany value;
(f) other than as required by applicable statute authorized any declaration or governmental regulationpayment of dividends, or paid any material increase in such dividends, or modification authorized any transfer of assets of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect kind whatsoever to any of the VERITAS Employees, its stockholders (other than (i) in the ordinary course payments or transfers by any Subsidiary of the business, consistent with past practice, or VCI to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowVCI);
(g) made any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than change in the ordinary course terms, status or funding condition of the business, consistent with past practiceany VCI Employee Benefit Plan;
(h) made any alteration capital expenditure in excess of $50,000 in any term of any outstanding capital stock instance or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change $500,000 in the terms of any outstanding stock optionsaggregate;
(i) other than acquired or disposed of, or committed to acquire or dispose of, any asset, or entered or committed to enter into any contract, agreement or commitment, in any such case which involves the payment in the ordinary course case of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member an acquisition of the VERITAS Group of any debt of any person, other more than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group50,000, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregatecase of a disposition of more than $500,000, other than to refinance a liability reflected in except agreements, commitments or transactions involving the VERITAS Financial Statements in the ordinary course purchase of business;
(k) any making by any member of the VERITAS Group of any loan, advance inventory or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than supplies in the ordinary course of business consistent with past practicepractice and which do not have a remaining term exceeding twelve months;
(j) increased or agreed to increase the compensation or bonuses payable or to become payable to any employees with annual salaries exceeding $50,000, or increased any salaries or bonuses payable or to become payable to any employees in any manner not in the Ordinary Course of Business;
(k) made or agreed to make any loan to any of its employees, officers, stockholders or directors, other than travel advances made in the Ordinary Course of Business;
(l) granted or agreed to grant to any person any option, right or warrant or other commitment calling for the issuance or sale of any shares of capital stock, bonds or other corporate securities (other than options granted in the Ordinary Course of Business to employees, consultants and members of the Board of Directors of VCI and which are being assumed pursuant to Section 2.5 hereof); or
(m) granted or voluntarily subjected any transfer material asset to a lien or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group encumbrance (other than routine individual grievances)any purchase money security interest, any activity conditional title retention arrangement, mechanic's lien, lien for taxes not yet due or proceeding lien arising by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member operation of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreementslaw).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Healthcentral Com), Merger Agreement (Healthcentral Com)
Absence of Certain Changes or Events. (a) Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to set forth on Schedule 3.9(a), since the date of this Agreementthe Company Interim Balance Sheet, since the VERITAS Financial Statements Balance Sheet Date there has not occurredbeen:
(ai) any Company Material Adverse Effect;
(ii) any material loss, damage, destruction or other casualty to the assets or properties of either the Company or any of its Subsidiaries (other than any for which insurance awards have been received or guaranteed);
(iii) any change in any method of accounting or event which could reasonably be expected to have accounting practice of either the Company or any of its Subsidiaries except for any such change required by reason of a Material Adverse Effect on VERITAS; provided, however, that in no event will a concurrent change in GAAP; or
(iv) any loss of the trading price employment, services or benefits of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;the chief executive officer of the Company and members of the Company’s senior management who report directly to such chief executive officer.
(b) any amendments or changes Since the date of the Company Interim Balance Sheet, each of the Company and each of its Subsidiaries has operated in the Certificate ordinary course of Incorporation its business and consistent with past practice and, except as set forth on Schedule 3.9(b), has not:
(i) incurred any material obligation or Bylaws liability (whether absolute, accrued, contingent or otherwise) except in the ordinary course of any member of the VERITAS Groupbusiness and consistent with past practice;
(cii) failed to discharge or satisfy any damagematerial Lien or pay or satisfy any material obligation or liability (whether absolute, destruction to accrued, contingent or loss of VERITAS assets not covered by insuranceotherwise), other than Permitted Liens and liabilities being contested in good faith and for which would adequate reserves have a Material Adverse Effect on VERITASbeen provided;
(diii) mortgaged, pledged or subjected to any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group Lien (other than pursuant to arrangements with employees Permitted Liens) any of its assets, properties or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business rights;
(eiv) sold or transferred any of its material assets or cancelled any material increase in debts or modification claims or waived any material rights;
(v) disposed of the compensation any material patents, trademarks or benefits payable by VERITAS copyrights or any material patent, trademark or copyright applications or registrations;
(vi) disclosed any of its material trade secrets, except pursuant to become payable written confidentiality obligations;
(vii) defaulted on any material obligation;
(viii) entered into any transaction material to the VERITAS Employeesits business, except in the ordinary course of the business, consistent with past practice business and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(hix) granted any alteration material increase in any term the compensation or benefits of any outstanding capital stock or rights to acquire capital stock of any member its key employees other than increases in accordance with past practice not exceeding 8% of the VERITAS Groupkey employee’s annual base compensation then in effect, includingor entered into any employment, but not limited tochange of control, acceleration retention or severance agreement or arrangement with any of the vesting or any change in the terms of any outstanding stock optionsthem;
(ix) contractually committed to make any capital expenditure for any periods after the date hereof or additions to property, plant and equipment used in its operations other than ordinary repairs and maintenance in excess of $100,000 in the ordinary course aggregate;
(xi) laid off any significant number of business, consistent with past practice, its employees;
(Axii) any incurrence, assumption or guarantee by any member of discontinued the VERITAS Group offering of any debt material services or product;
(xiii) incurred any material obligation or liability for the payment of severance benefits;
(xiv) declared, paid, or set aside for payment any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options dividend or other rights to acquire from the VERITAS Groupdistribution in respect of shares of its capital stock, membership interests or other securities, or redeemed, purchased or otherwise acquired, directly or indirectly, debt securities any shares of any member of the VERITAS Groupits capital stock, membership interests or other securities, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than agreed to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASdo so; or
(oxv) entered into any agreement by or made any member of the VERITAS Group commitment to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Absence of Certain Changes or Events. Except as publicly disclosed in the ------------------------------------ VERITAS Banknorth Reports filed with the SEC Documents filed prior to the date hereof, or as set forth in Section 3.8 of this Agreementthe Banknorth Disclosure Schedule, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
December 31, 2003, (a) any change no event has occurred which has had or event which could would reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
Banknorth and (b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect prior to the capital stock of any member of the VERITAS Group ordate hereof, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to neither Banknorth nor any of the VERITAS Employees, other than its Subsidiaries has (i) in the ordinary course effected or authorized any adjustment, split, combination or reclassification of the business, consistent with past practiceany of its capital stock, or to respond to third party solicitation redeemed, purchased or otherwise acquired, any shares of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding its capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities obligations convertible into or exchangeable for any such debt securities;
shares of its capital stock or stock appreciation rights (j) any creation or assumption by any member except pursuant to the exercise of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and stock options); (ii) declared, set aside or paid any dividend other loans than regular quarterly cash dividends on Banknorth Common Stock and advancesdividends paid to the holders of trust preferred securities issued by affiliated trusts in accordance with the terms of such securities; (iii) sold, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment oflicensed, relinquishmentleased, termination encumbered, mortgaged, transferred, assigned or non- renewal by VERITAS otherwise disposed of any of the VERITAS Contractsits material assets, properties or other rights or agreements other than in the ordinary course of business consistent with past practice;
; (miv) increased the compensation or fringe benefits of any transfer present or grant former director or officer of a right under the VERITAS IP Rights, other than those transferred Banknorth or granted its Subsidiaries (except for increases in salary or wages of nonexecutive officers or employees in the ordinary course of business, business consistent with past practice), or granted any severance or termination pay to any present or former director, officer or employee of Banknorth or its Subsidiaries except for in connection with terminations of employment of non-officer employees in the ordinary course of business consistent with past practice; (v) made any grant of a right material change in its policies and practices with respect to source code (x) underwriting, pricing, originating, acquiring, selling, servicing, or grant of any exclusive buying or selling rights to service Loans or (y) hedging its Loan positions or commitments; (vi) made any VERITAS IP Rightschanges in its accounting methods or method of Tax accounting, each of which shall be set forth practices or policies; (vii) made or changed any material Tax election or settled or compromised any material Tax liability as defined in (Section 3.09(m5.2(u)) of the VERITAS Disclosure Letter;
Banknorth or any of its Subsidiaries; or (nviii) any labor dispute withagreed to, or charge of unfair labor practice bymade any commitment to, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Banknorth Group Inc/Me), Merger Agreement (Toronto Dominion Bank)
Absence of Certain Changes or Events. Except as disclosed in (a) Between the ------------------------------------ VERITAS SEC Documents filed prior to date of the Latest Audited Company Balance Sheet and the date of this Agreement, since other than in connection with the VERITAS Financial Statements Balance Sheet Date Bankruptcy Case and related payments and transactions, there has not occurredbeen:
(ai) any change no change, event or event which could development that has had, or would reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect on VERITASEffect; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;and
(bii) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any no material damage, destruction to destruction, loss or loss of VERITAS assets claim, whether or not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or condemnation or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to taking adversely affecting any of the VERITAS Employees, other than Purchased Shares or the Business.
(ib) in Between the ordinary course date of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, Latest Audited Company Balance Sheet and (ii) if after the date of this Agreement, which is authorizedthe Company has conducted the Business in all material respects in, if requiredand has not entered into any material transaction other than in accordance with, pursuant the ordinary course of business consistent with past practice. Between the date of the Latest Audited Company Balance Sheet and the date of this Agreement, the Company has not (other than in connection with the Bankruptcy Case and related payments and transactions):
(i) made any fundamental change in the Business or operations of the Company with respect to Section 5.3 belowthe Business;
(gii) adopted any sale amendment to its Articles of a material amount Incorporation, Bylaws or other applicable governing documents;
(iii) sold, pledged, leased, disposed of or granted any of its property, including the VERITAS AssetsReal Property, or any acquisition by of its assets or equity interests in any member other Person, or subjected any of the VERITAS Group its properties, assets or equity interests to a Lien, except (A) for sales of a material amount of assets, other than current assets in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, business consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or Permitted Encumbrances, (C) issuance for other sales that do not exceed, individually or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected Fifty Thousand Dollars ($50,000), and (D) as set forth in Section 4.5(b) of the VERITAS Financial Statements in the ordinary course of businessSeller Disclosure Letter;
(kiv) exercised any making by option to purchase, sell or lease (whether as lessor or lessee) real property or any member of the VERITAS Group of any loan, advance or capital contribution option to or investment in any person other than to refinance extend a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000lease;
(lv) incurred, assumed, or modified any amendment of, relinquishment, termination Indebtedness;
(vi) canceled any debts owed to or non- renewal claims held by VERITAS the Company with respect to the Business (including the settlement of any of the VERITAS Contracts, claims or litigation) other than debts owed or claims held which do not exceed Fifty Thousand Dollars ($50,000) in the aggregate, or in the ordinary course of business consistent with past practice;
(mvii) other than as required by applicable Law or the terms of a Material Contract, terminated any Contract that would have been a Material Contract if it were in effect on the date of this Agreement;
(viii) failed to maintain the existing insurance coverage relating to the Real Property;
(ix) authorized for issuance, issued, sold or delivered (A) any transfer equity or grant of a right under the VERITAS IP Rights, other than those transferred or granted voting interest in the ordinary course Company or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any equity or voting interest in the Company, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire any equity or voting interest in the Company;
(x) split, combined, redeemed, reclassified, purchased or otherwise acquired, directly or indirectly, any equity or voting interest in the Company, or made any other change in the capital structure of businessthe Company;
(xi) acquired any business or Person, consistent with past practiceby merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions;
(xii) made any capital expenditure or commitment therefor, entered into any capital leases or otherwise acquired any assets or properties, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be as set forth in Section 3.09(m) 4.5 of the VERITAS Seller Disclosure Letter;
(nxiii) modified or rescinded any labor dispute withof the Company Permits, or charge failed to use good faith efforts to obtain any renewal or extension, as may be required by Law, of unfair labor any Company Permits;
(xiv) subjected the Company to any bankruptcy, receivership, insolvency or similar proceedings;
(xv) made any change in any method of accounting or auditing practice byother than those required by GAAP;
(xvi) except as required by applicable Law, prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable pursuant to Section 6.12 or accelerating deductions to periods for which the Company is liable pursuant to Section 6.12);
(xvii) made any loans, advances or capital contributions to, or investments in, any member other Person;
(xviii) entered into any transaction with any Affiliate or Affiliated Person, except as set forth in Section 4.6 of the VERITAS Group Seller Disclosure Letter;
(other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees xix) adopted or, to VERITAS' Knowledgeexcept as required by applicable Law, amended any campaign being conducted to solicit authorization from VERITAS Employees to be represented Company Benefit Plan;
(xx) except (A) as required by any Contract or any Company Benefit Plan, in each case, as in effect at such labor uniontime, where (B) as required by applicable Law at such dispute, practice, activity, proceedingtime, or c ampaign would have a Material Adverse Effect (C) for the Stay Bonuses, awarded or increased any bonuses, salaries, severance, pension or other compensation or benefits to any Employee, officer, director, independent contractor or consultant or entered into or amended or modified any employment, severance or similar Contract with any Employee, or taken any action to accelerate the vesting or payment of any compensation or benefit for any Employee, officer, director, independent contractor or consultant;
(xxi) declared or paid any dividends or distributions on VERITASor in respect of any of its capital stock; or
(oxxii) any agreement by any member of the VERITAS Group authorized, committed or agreed to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing actions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Monarch Casino & Resort Inc), Stock Purchase Agreement (Riviera Holdings Corp)
Absence of Certain Changes or Events. Other than as set forth in Section 3.10 to the Company Disclosure Schedule, since August 31, 1998, there has been no material adverse change, and no change except in the Ordinary Course of Business, in the business, operations, prospects, condition (financial or otherwise), Assets or liabilities of the Company or any Subsidiary. Except as disclosed set forth in Section 3.10 to the Company Disclosure Schedule, since August 31, 1998, the Company and the Subsidiaries have conducted their respective businesses substantially in the ------------------------------------ VERITAS SEC Documents filed prior to manner theretofore conducted and only in the date Ordinary Course of this AgreementBusiness, since and neither the VERITAS Financial Statements Balance Sheet Date there Company nor any Subsidiary has not occurred:
(a) incurred any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any material damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or insurance with respect to any Assets of the VERITAS EmployeesCompany or of any such Subsidiary; (b) issued any capital stock or other equity securities or granted any options, warrants or other rights calling for the issuance thereof; (c) issued any bonds or other long-term debt instruments, granted any options, warrants or other rights calling for the issuance thereof, or borrowed any funds; (d) incurred, or become subject to, any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown), except current liabilities incurred in the Ordinary Course of Business; (e) discharged or satisfied any Encumbrance or paid any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown) other than current liabilities shown in the Unaudited Balance Sheets (as defined in Section 6.08) and current liabilities incurred since August 31, 1998, in the Ordinary Course of Business; (f) declared or made payment of, or set aside for payment, any dividends or distributions of any Assets, or purchased, redeemed or otherwise acquired any of its capital stock, any securities convertible into capital stock, or any other securities; (g) mortgaged, pledged or subjected to any Encumbrance any of its material Assets; (h) sold, exchanged, transferred or otherwise disposed of any of its material Assets, or canceled any debts or claims, except in each case in the Ordinary Course of Business; (i) written down the value of any Assets or written off as uncollectable any debt, notes or accounts receivable, except to the extent previously reserved against in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS EmployeesFinancial Statements and not material in amount, and except for write-downs and write-offs in the Ordinary Course of Business, none of which, individually or in the aggregate, are material; (iij) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) entered into any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, transactions other than in the ordinary course Ordinary Course of Business; (k) except in the businessOrdinary Course of Business, consistent with past practice;
increased the rate of compensation payable, or to become payable, by it to any of its officers, employees, agents or independent contractors over the rate being paid to them on August 31, 1998, (hl) made or permitted any alteration in any term amendment or termination of any outstanding capital stock material Agreement to which it is a party; (m) through negotiation or rights otherwise made any commitment or incurred any liability to acquire capital stock any labor organization; (n) made any accrual or arrangement for or payment of bonuses or special compensation of any member kind to any director, officer or employee, except for any accrual or arrangement for or payment of the VERITAS Group, including, but not limited to, acceleration of the vesting bonuses or any change special compensation in the terms Ordinary Course of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption Business to employees who are not directors or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000officers; (Bo) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities indirectly paid any severance or termination pay in excess of two months' salary to any member of the VERITAS Group, officer or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset employee with an annual salary in excess of $2,500,000 60,000; (p) made capital expenditures, or entered into commitments therefor, not provided for in the Company's capital budget for 1998 (a copy of which has been furnished by the Company to ▇▇▇▇▇▇) or, if applicable, the Company's capital budget for 1999 (which capital budget shall have been approved by ▇▇▇▇▇▇ as provided in Section 5.01(i)), except for capital expenditures permitted by Section 5.01; (q) made any change in any method of accounting or accounting practice except as required by GAAP; (r) entered into any transaction of the type described in Section 3.19; (s) made any charitable contributions or pledges exceeding $10,000 individually or $100,000 in the aggregate, other than ; or (t) made any Agreement to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of do any of the VERITAS Contractsforegoing. At the Closing, other than the Company shall deliver to ▇▇▇▇▇▇ an updated Section 3.10 to the Company Disclosure Schedule in accordance with the ordinary course provisions of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)6.04.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (McLeodusa Inc), Agreement and Plan of Merger (McLeodusa Inc)
Absence of Certain Changes or Events. Except as publicly disclosed in the ------------------------------------ VERITAS Interchange SEC Documents Reports filed with the SEC prior to the date hereof, or as set forth in Section 4.8 of this Agreementthe Interchange Disclosure Schedule, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
December 31, 2005, (a) any change no event has occurred which has had or event which could would reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
Interchange and (b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect prior to the capital stock of any member of the VERITAS Group ordate hereof, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to neither Interchange nor any of the VERITAS Employees, other than its Subsidiaries has (i) in the ordinary course effected or authorized any adjustment, split, combination or reclassification of the business, consistent with past practiceany of its capital stock, or to respond to third party solicitation redeemed, purchased or otherwise acquired, any shares of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding its capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities obligations convertible into or exchangeable for any such debt securities;
shares of its capital stock or stock appreciation rights (j) any creation or assumption by any member except pursuant to the exercise of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and stock options); (ii) declared, set aside or paid any dividend other loans than regular quarterly cash dividends on Interchange Common Stock and advancesdividends paid to the holders of trust preferred securities issued by affiliated trusts in accordance with the terms of such securities; (iii) sold, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment oflicensed, relinquishmentleased, termination encumbered, mortgaged, transferred, assigned or non- renewal by VERITAS otherwise disposed of any of the VERITAS Contractsits material assets, properties or other rights or agreements other than in the ordinary course of business consistent with past practice;
; (miv) increased the compensation or fringe benefits of any transfer present or grant former director or officer of a right under the VERITAS IP Rights, other than those transferred Interchange or granted its Subsidiaries (except for increases in salary or wages of nonexecutive officers or employees in the ordinary course of business, business consistent with past practice), or granted any severance or termination pay to any present or former director, officer or employee of Interchange or its Subsidiaries except for in connection with terminations of employment of non-officer employees in the ordinary course of business consistent with past practice; (v) amended or terminated any grant of a right Interchange Benefit Plan; (vi) made any material change in its policies and practices with respect to source code (x) underwriting, pricing, originating, acquiring, selling, servicing, or grant of any exclusive buying or selling rights to service Loans or (y) hedging its Loan positions or commitments; (vii) made any VERITAS IP Rightschanges in its accounting methods or method of Tax accounting, each practices or policies; (viii) made or changed any material Tax election or settled or compromised any material Tax liability of which shall be set forth in Section 3.09(mInterchange or any of its Subsidiaries; or (ix) of the VERITAS Disclosure Letter;
(n) any labor dispute withagreed to, or charge of unfair labor practice bymade any commitment to, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Td Banknorth Inc.), Merger Agreement (Interchange Financial Services Corp /Nj/)
Absence of Certain Changes or Events. Except as set forth in the Computervision Disclosure Schedule, since September 28, 1997, there has not occurred any Computervision Material Adverse Effect other than as disclosed in the ------------------------------------ VERITAS Computervision SEC Documents Reports filed prior to before the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date hereof and there has not occurredbeen, occurred or arisen any:
(a) any change transaction by Computervision or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change its Subsidiaries except in the trading price ordinary course of VERITAS Common Stock be deemed a Material Adverse Effect business as conducted on VERITASthe date of the Computervision Balance Sheet and consistent with past practices;
(b) any amendments or changes in to the Certificate of Incorporation or Bylaws of any member of the VERITAS GroupComputervision;
(c) any damageindividual capital expenditure or commitment, destruction to or loss series of VERITAS assets not covered related capital expenditure or commitments, by insurance, which would have a Material Adverse Effect on VERITASComputervision or its Subsidiaries outside the ordinary course of business exceeding $250,000;
(d) destruction of, damage to or loss of any redemptionassets material to the business of Computervision and its Subsidiaries taken as a whole (whether or not covered by insurance);
(e) material adverse change in a material customer relationship, repurchase including without limitation any cancellation or termination or notice of cancellation or termination by any material customer of its relationship or a material portion of its relationship with Computervision or any of its Subsidiaries or any material decrease or planned decrease in the usage or purchase of the products or services of Computervision or any of its Subsidiaries by any such customer from that reasonably expected by Computervision at the date of this Agreement.
(f) labor trouble or claim of wrongful discharge (except for such claims as would not reasonably be expected to result in potential damages greater than $250,000) or other acquisition of shares unlawful labor practice or action that would have a Computervision Material Adverse Effect ;
(g) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Computervision;
(h) material revaluation by Computervision or its Subsidiaries of any member of the VERITAS Group its assets;
(other than pursuant to arrangements with employees or consultants), or any i) declaration, setting aside or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of Computervision, or any member of the VERITAS Group ordirect or indirect redemption, with respect to dividends purchase or other distributions acquisition by Computervision of cash or property arising from the VERITAS Business any of its capital stock;
(ej) any material increase in the salary or modification of the other compensation or benefits payable by VERITAS or to become payable to any of its (i) officers or directors or (ii) employees or advisors receiving, after such increase, annualized compensation in excess of $100,000 per year, or the VERITAS Employeesdeclaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as disclosed in the Computervision Disclosure Schedule or otherwise contemplated by this Agreement and except for increases, payments or commitments in the ordinary course of business and consistent with past practices;
(k) sale, lease, license or other disposition of any of the assets or properties of Computervision or its Subsidiaries, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(fl) other than as required by applicable statute amendment or governmental regulation, termination of any material increase in contract, agreement or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards license to which Computervision or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) its Subsidiaries is a party or by which it is bound except for amendments in the ordinary course of business or terminations pursuant to the businessterms of the contract, consistent with past practice, agreement or to respond to third party solicitation license and not as a result of VERITAS Employeesany breach, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to except for amendments or terminations described in Section 5.3 below2.7(e);
(gm) loan by Computervision or any of its Subsidiaries to any person or entity, incurring by Computervision or any Subsidiary of any indebtedness (except for indebtedness in amounts described in Section 2.18(d) of the Computervision Disclosure Schedule incurred under existing credit lines or arrangements set forth in Section 2.18(d) of the Computervision Disclosure Schedule), guaranteeing by Computervision or any Subsidiary of any indebtedness, issuance or sale of a material amount any debt securities of the VERITAS Assets, Computervision or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term Subsidiary or guaranteeing of any outstanding capital stock or rights debt securities of others, except for advances to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than employees for travel and business expenses in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiespractices;
(jn) any creation waiver or assumption by any member of the VERITAS Group release of any Encumbrance (material right or claim of Computervision or any of its Subsidiaries, including any write-off or other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group compromise of any loan, advance account receivable of Computervision or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, Subsidiary other than in the ordinary course of business and consistent with past practicepractices;
(mo) change in pricing or royalties set or charged by Computervision or its subsidiaries to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to Computervision or any transfer or grant of a right under the VERITAS IP Rights, its Subsidiaries other than those transferred or granted in the ordinary course of business, business and consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASpractices; or
(op) any commitment, understanding or agreement by Computervision or any member of the VERITAS Group its Subsidiaries or any officer or employee thereof to take do any of the actions things described in the preceding clauses (a) through (no) (other than the transactions contemplated by this Agreement or the Ancillary AgreementsAgreement).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Parametric Technology Corp), Agreement and Plan of Reorganization (Computervision Corp /De/)
Absence of Certain Changes or Events. Except Other than as disclosed in set forth on ------------------------------------ the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementDisclosure Schedule, since the VERITAS Financial Statements Balance Sheet Date Date, there has not occurred:been any: -------------------
(a) change in any change of the Companies' condition (financial or event which otherwise) that could reasonably be expected to have a Material an Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(bi) except for normal periodic increases in the ordinary course of business consistent with past practices, increase in the compensation payable or to become payable by any of the Companies to any of their respective officers, employees or agents (collectively, "Personnel"), (ii) any amendments bonus, incentive --------- compensation, service award or changes other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of any of the Personnel, (iii) any employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by any of the Companies for any Personnel except pursuant to the existing plans and arrangements described in the Certificate of Incorporation Disclosure ---------- Schedule or Bylaws of (iv) any member new employment or consulting agreement to which any of the VERITAS Group-------- Companies is a party;
(c) any damage, destruction addition to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation employee benefit plans, arrangements or benefits payable by VERITAS or to become payable to the VERITAS Employees, except practices described in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, Disclosure Schedule affecting ------------------- Personnel other than (i) contributions made for fiscal years 1996 and 1997 in accordance with the ordinary course normal practices of the business, consistent with past practice, Companies or to respond to third party solicitation of VERITAS Employees, and (ii) if the extension of coverage to other Personnel who became eligible after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;Balance Sheet Date as set forth in the Disclosure Schedule; -------------------
(gd) sale, assignment or transfer of any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, business and consistent with past practicepractices;
(he) any alteration in any term cancellation of any outstanding capital stock Indebtedness or rights to acquire capital stock waiver of any member rights of substantial value to any of the VERITAS GroupCompanies, including, but whether or not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kf) any making by any member of the VERITAS Group amendment, cancellation or termination of any loanContract, advance license or capital contribution other instrument of substantial value to the Assets, sales, Business, prospects, earnings or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than condition (ifinancial or otherwise) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than Companies;
(g) capital expenditure or execution of any lease or incurring of liability therefor by any of the Companies not in the ordinary course of business and consistent with past practicepractices, or involving payments in excess of $50,000 in the aggregate;
(h) failure to repay any obligation of any of the Companies;
(i) failure to operate the Business in the ordinary course and consistent with past practices and to preserve the Business intact, to keep available to Buyer the services of the Personnel, or to preserve for Buyer the goodwill of the Companies' suppliers, customers or others having business relations with it;
(j) change in accounting methods or practices by any of the Companies affecting its Assets, earnings, reserves, working capital, prospects, liabilities or Business;
(k) revaluation by any of the Companies of any of their respective Assets or properties, including without limitation, writing off notes or accounts receivable;
(l) damage, destruction or loss (whether or not covered by insurance) adversely affecting the Facilities, properties, Assets, Business, condition (financial or otherwise) or prospects of any of the Companies;
(m) mortgage, pledge or other Encumbrance of any transfer Assets or grant properties of a right under any of the VERITAS IP RightsCompanies;
(n) declaration, setting aside or payment of dividends or distributions in respect of any Equity Interests of any of the Companies or any redemption, purchase or other than those transferred acquisition of any Equity Interests of any of the Companies;
(o) issuance by any of the Companies of, or granted commitment of any of the Companies to issue, any securities or other Equity Interests or obligations or securities convertible into or exchangeable for the Companies' securities or Equity Interests;
(p) Indebtedness incurred by any of the Companies except as approved by Buyer prior to incurrence thereof;
(q) liabilities incurred not in the ordinary course of business, business and consistent with past practicepractices that in the aggregate exceeds $50,000, except for or any grant increase or change in any assumptions underlying or methods of a right to source code calculating any bad debt, contingency or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterother reserves;
(nr) payment, discharge or satisfaction of any labor dispute withliabilities other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the Balance Sheet or incurred in the ordinary course of business and consistent with past practice since the Balance Sheet Date;
(s) activity which has resulted or may, with the passage of time or the giving of notice or otherwise, result in the acceleration or delay of the collection of its accounts or notes receivable or any delay in the payment of its accounts payable, in each case as compared with its custom and practice in the conduct of the Business immediately prior to the Balance Sheet Date;
(t) loan or advance of any of the Companies' funds or other property to, or charge guarantee for the benefit of, or any Investment of unfair labor practice byany of its funds or other property in, any member other Person;
(u) receipt of any notice or other indication by any of the VERITAS Group Companies (other than routine individual grievances), i) from any activity or proceeding by a labor union or representative thereof of its suppliers to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by the effect that such labor union, where such dispute, practice, activity, proceedingsupplier may stop, or c ampaign would decrease the rate of, supplying products or services to any of the Companies; (ii) from any of its customers to the effect that such customer may stop, or decrease the rate of, buying services from any of the Companies; or (iii) with respect to any of its significant suppliers or customers to the effect that any of such suppliers or customers have or are reasonably likely to experience an event or condition which may have a Material material adverse effect on such suppliers or customers;
(v) other event or condition of any character which, in any one case or in the aggregate, has resulted in an Adverse Effect on VERITASor any event or condition known to any of the Companies or any of the Sellers which could, in any one case or in the aggregate, reasonably be expected to result in an Adverse Effect; or
(ow) any agreement by any member of the VERITAS Group to take Companies or by any of the actions described in Sellers or by any of their respective Representatives to do any of the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing, as applicable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Coinmach Laundry Corp), Stock Purchase Agreement (Coinmach Corp)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior Acquired Balance Sheet Date to the date of this Agreement (with respect to the representation and warranty made as of the date of this Agreement, since ) and to the VERITAS Financial Statements Balance Sheet Closing Date there has not occurred:(with respect to the representation and warranty made as of the Closing Date):
(a) there has not been any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price condition (financial or otherwise), operations, prospects or results of VERITAS Common Stock be deemed operations of the Acquired Company and its Subsidiaries taken as a Material Adverse Effect on VERITASwhole;
(b) neither the Acquired Company nor any amendments of its Subsidiaries has amended or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupchanged its Charter Documents;
(c) neither the Acquired Company nor any damageof its Subsidiaries has declared, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, stock or property) with respect to any Equity Security or any other security;
(d) neither the capital stock Acquired Company nor any of its Subsidiaries has split, combined or reclassified any member of the VERITAS Group or, with respect to dividends Equity Security or other distributions of cash security, or property arising from the VERITAS Business issued, or authorized for issuance, any Equity Security or other security;
(e) neither the Acquired Company nor any material increase in of its Subsidiaries has altered any term of any outstanding Equity Security or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employeesother security;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, neither the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to Acquired Company nor any of the VERITAS Employees, other than its Subsidiaries has (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than except in the ordinary course of business, consistent with past practiceincreased or modified the compensation or benefits payable or to become payable by the Acquired Company or any of its Subsidiaries to any of its current or former directors, employees, contractors or consultants, (Aii) except as provided for in this Agreement, increased or modified any incurrencebonus, assumption severance, termination, pension, insurance or guarantee by other employee benefit plan, payment or arrangement made to, for or with any member current or former directors, employees, contractors or consultants of the VERITAS Group Acquired Company or any of any debt of any personits Subsidiaries, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (Ciii) issuance entered into any employment, severance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiestermination agreement;
(jg) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess the sale of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements inventory in the ordinary course of business, neither the Acquired Company nor any of its Subsidiaries has sold, leased, transferred or assigned any property or assets of the Acquired Company or any such Subsidiary;
(kh) neither the Acquired Company nor any making by of its Subsidiaries has incurred, assumed or guaranteed any member Indebtedness;
(i) neither the Acquired Company nor any of its Subsidiaries has created or assumed any Lien on any asset, except for Liens arising under lease financing arrangements existing as of the VERITAS Group Acquired Balance Sheet Date and Permitted Liens;
(j) neither the Acquired Company nor any of its Subsidiaries has made any loan, advance or capital contribution to to, or investment in in, any person Person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, travel loans or advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(mk) there has not been any transfer or grant of a right under the VERITAS IP Rightslabor dispute, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withindividual grievances, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees oremployees of the Acquired Company or any of its Subsidiaries;
(l) none of Seller, the Acquired Company or the Subsidiaries of the Acquired Company has agreed or entered into any arrangement to VERITAS' Knowledgetake any action which, any campaign being conducted if taken prior to solicit authorization from VERITAS Employees to be represented by such labor unionthe date hereof, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASmade any representation or warranty set forth in this ARTICLE III untrue or incorrect;
(m) there has not been any material damage, destruction or loss with respect to the property and assets of the Acquired Company or any of its Subsidiaries, whether or not covered by insurance;
(n) none of Seller, the Acquired Company or any of its Subsidiaries has made any change in accounting practices;
(o) none of Seller, the Acquired Company or any of its Subsidiaries has made any Tax election, changed its method of Tax accounting or settled any claim for Taxes; or
(op) none of Seller, the Acquired Company or any agreement by any member of the VERITAS Group its Subsidiaries has agreed, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (La Cortez Energy, Inc.), Stock Purchase Agreement (Avante Petroleum S.A.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS Seller SEC Documents Reports filed prior to the date of this Agreement or set forth in SECTION 2.8 of the Seller Disclosure Schedule and except for the transactions contemplated by this Agreement, since September 30, 1997 to the VERITAS Financial Statements Balance Sheet Date date of this Agreement, the Seller and the Seller Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since September 30, 1997, there has not occurred:
been (ai) any change in the financial condition, results of operations or event which could reasonably be expected to have business of the Seller and any of the Seller Subsidiaries having a Material Adverse Effect on VERITAS; providedwith respect to the Seller, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(cii) any damage, destruction to or loss of VERITAS assets (whether or not covered by insurance, which would have ) with respect to any assets of the Seller or any of the Seller Subsidiaries having a Material Adverse Effect on VERITAS;
with respect to Seller, (diii) any redemptionchange by the Seller in its accounting methods, repurchase principles or other acquisition of shares practices, (iv) any revaluation by the Seller of any member of the VERITAS Group its assets in any material respect, (other than pursuant to arrangements with employees or consultants), or v) any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Seller Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends its securities or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS GroupSeller Subsidiary, or any securities convertible into or exchangeable for any such debt securities;
(jvi) any creation strike, work stoppage, slow-down or assumption other labor disturbance suffered by any member of the VERITAS Group of any Encumbrance Seller or the Seller Subsidiaries, (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kvii) any making by any member of the VERITAS Group of any loancollective bargaining agreement, advance contract or capital contribution to other agreement or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent understanding with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof organization to organize which the Seller or the Seller Subsidiaries have been a party, (viii) any VERITAS Employees orunion organizing activities relating to employees of the Seller or the Seller Subsidiaries, or (ix) any increase in the wages, salaries, compensation, pension or other fringe benefits or perquisites payable to VERITAS' Knowledgeany executive officer, employee or director, any campaign being conducted grant of severance or termination pay, any contract entered into to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingmake or grant any severance or termination pay, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member bonus paid other than year-end bonuses for fiscal 1997 as listed in SECTION 2.8 of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Seller Disclosure Schedule.
Appears in 2 contracts
Sources: Merger Agreement (Firstplus Financial Group Inc), Merger Agreement (Life Financial Corp)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior Interim Balance Sheet Date to the date of this Agreement, since Agreement and to the VERITAS Financial Statements Balance Sheet Date there has not occurredClosing Date:
(a) there has not been any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price condition (financial or otherwise), operations, prospects or results of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASoperations of the Business or Seller;
(b) any amendments Seller has not amended or changes changed, or proposed to amend or change, its Charter Documents in a manner that could be expected to delay the Certificate of Incorporation or Bylaws of any member consummation of the VERITAS Grouptransactions contemplated by this Agreement;
(c) any damageSeller has not declared, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, stock or property) with respect to any equity security or debt security;
(d) Seller has not (i) increased or modified the capital stock of compensation or benefits payable or to become payable by Seller to any member current or former directors, employees, consultants or contractors of the VERITAS Group orBusiness, (ii) increased or modified any Benefit Plan made to, for or with respect any current or former directors, employees or contractors of the Business, or (iii) entered into any employment, severance or termination agreement Related to dividends or other distributions of cash or property arising from the VERITAS Business Business;
(e) Seller has not sold, leased, transferred or assigned any material increase in property or modification of the compensation or benefits payable by VERITAS or to become payable assets Related to the VERITAS EmployeesBusiness, except for (i) the sale of Inventory, (ii) the grant of non-exclusive Out-Bound Licenses, and (iii) the sale of obsolete Equipment, in each case in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, Business consistent with past practice;
(f) Seller has not incurred, assumed or guaranteed any Indebtedness Related to the Business;
(g) Seller has not mortgaged, pledged or subjected to Liens any assets, properties or rights Related to the Business, except for Liens arising under lease financing arrangements existing as of the Balance Sheet Date and Permitted Liens;
(h) Seller has not entered into, amended, modified, canceled or waived any alteration in rights under, any term of any outstanding capital stock Material Contract and no Material Contract has been terminated or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock optionscancelled;
(i) other than in Seller has not taken any action outside the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesBusiness;
(j) there has not been any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregatelabor dispute, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withindividual grievances, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees oremployees of the Business;
(k) there has not been any violation of, or conflict with, any applicable Law or any Business Authorization;
(l) Seller has not agreed, or entered into any arrangement, to VERITAS' Knowledgetake any action which, any campaign being conducted if taken prior to solicit authorization from VERITAS Employees to be represented by such labor unionthe date hereof, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; ormade any representation or warranty set forth in this Article IV untrue or incorrect as of the date when made;
(m) there has not been any material damage, destruction or loss with respect to the assets, properties and rights of the Business, whether or not covered by insurance;
(n) Seller has not made any change in the accounting practices Related to the Business;
(o) Seller has not made any agreement by Tax election, changed its method of Tax accounting or settled any member of claim for Taxes, in each case Related to the VERITAS Group Business; and
(p) Seller has not agreed, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Symmetry Medical Inc.), Asset Purchase Agreement (Symmetry Medical Inc.)
Absence of Certain Changes or Events. Except As of the date hereof, except as disclosed in the ------------------------------------ VERITAS TriZetto SEC Documents filed prior to the date of this Agreement or as contemplated by this Agreement, since the VERITAS Financial Statements TriZetto Balance Sheet Date there has not occurred:
(a) any change in the financial condition, properties, businesses or event which could results of operations of TriZetto and the TriZetto Subsidiaries taken as a whole that is reasonably be expected likely to have constitute a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASTriZetto;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS GroupTriZetto;
(c) any damage, damage destruction to or loss of VERITAS assets not to physical property, whether covered by insuranceinsurance or not, which would have that is reasonably likely to constitute a Material Adverse Effect on VERITASTriZetto;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group TriZetto Common Stock by TriZetto (other than pursuant to arrangements with terminated employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business TriZetto Common Stock;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable by TriZetto to the VERITAS Employeesany of its directors or employees, except in the ordinary course of the business, business consistent with past practice and necessary to respond to third party solicitation of VERITAS Employeespractice;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group bonus, pension, insurance or TriZetto Employee Plan or TriZetto Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated hereinmade to, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assetsits employees, other than in the ordinary course of the business, business consistent with past practice;
(g) any acquisition or sale of a material amount of property or assets of TriZetto, other than in the ordinary course of business consistent with past practice and those contemplated by this Agreement;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock security of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock optionsTriZetto;
(i) other than in the ordinary course of business, consistent with past practice, any (A) any incurrence, assumption or guarantee by any member of the VERITAS Group TriZetto of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000money; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securitiessecurities of TriZetto; or (C) issuance or sale of options or other rights to acquire from the VERITAS GroupTriZetto, directly or indirectly, debt securities of any member of the VERITAS Group, TriZetto or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group TriZetto of any Encumbrance (mortgage, pledge, security interest or lien or other than VERITAS Permitted Encumbrances) encumbrance on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of businessasset;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and Person other than (i) loans, travel loans or advances or capital contributions made in the ordinary course of the businessbusiness of TriZetto, and (ii) other loans and advances, where the advances in an aggregate amount of all such items which does not exceed $500,000 outstanding at any time does not exceed $1,000,000and (iii) purchases on the open market of liquid, publicly traded securities;
(l) any entering into, amendment of, relinquishment, termination or non- non-renewal by VERITAS TriZetto of any of the VERITAS Contractscontract, lease transaction, commitment or other right or obligation other than in the ordinary course of business consistent with past practicebusiness;
(m) any material transfer or grant of a right under the VERITAS TriZetto IP RightsRights (as defined in Section 4.14 below), other than those transferred or granted in the ordinary course of business, business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterpractices;
(n) any material labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any material activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledgeemployees of TriZetto, any material campaign being conducted to solicit authorization from VERITAS Employees employees to be represented by such labor unionunion or any material lockouts, where strikes, slow downs, work stoppages or threats thereof by or with such disputeemployees;
(o) any failure to make any material contribution due under any of the TriZetto Employee Plans;
(p) any event, practice, activity, proceeding, occurrence or c ampaign would development which is reasonably likely to have a Material Adverse Effect on VERITASTriZetto;
(q) any material change in the accounting practices of TriZetto, except for any such change required by reason of a concurrent change in GAAP; or
(or) any agreement or arrangement made by any member of the VERITAS Group TriZetto to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Agreement untrue or incorrect as of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)date when made unless otherwise disclosed.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Trizetto Group Inc), Agreement and Plan of Reorganization (Ims Health Inc)
Absence of Certain Changes or Events. Except as disclosed set forth in the ------------------------------------ VERITAS GSME SEC Documents Reports filed prior to the date of this Agreement, and except as contemplated by this Agreement, since the VERITAS Financial Statements Balance Sheet Date November 25, 2009, there has not occurred:
been: (ai) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedGSME or GSME Sub, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(bii) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulationof, any material increase in of GSME’s or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS AssetsGSME Sub’s capital stock, or any purchase, redemption or other acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term GSME or GSME Sub of any outstanding of GSME’s or GSME Sub’s capital stock or any other securities of GSME or GSME Sub or any options, warrants, calls or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting such shares or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practicesecurities, (Aiii) any incurrencesplit, assumption combination or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS reclassification of any of the VERITAS ContractsGSME’s or GSME Sub’s capital stock, other than (iv) any granting by GSME or GSME Sub of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice;
, or any payment by GSME or GSME Sub of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by GSME or GSME Sub of any increase in severance or termination pay or any entry by GSME or GSME Sub into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving GSME or GSME Sub of the nature contemplated hereby, (mv) entry by GSME or GSME Sub into any 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 GSME or GSME Sub with respect to any Governmental Entity, (vi) any transfer material change by GSME or grant GSME Sub in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of a right under GSME or GSME Sub, (viii) any issuance of capital stock of GSME or GSME Sub, or (ix) any revaluation by GSME or GSME Sub of any of its assets, including, without limitation, writing down the VERITAS IP Rights, value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of GSME or GSME Sub other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (GSME Acquisition Partners I), Agreement and Plan of Reorganization (GSME Acquisition Partners I)
Absence of Certain Changes or Events. Except as disclosed set out in Section 3.1(bb) of the ------------------------------------ VERITAS SEC Documents filed prior to Seller Disclosure Schedule, since the date of this Agreementthe most recent fiscal year end of the Corporation and the Holding Companies, since the VERITAS Financial Statements Balance Sheet Date there has not occurredneither of them has:
(ai) incurred any change fixed or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedcontingent obligation, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments liability or changes in the Certificate of Incorporation commitment except trade or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except business obligations incurred in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation none of VERITAS Employeeswhich is materially adverse or was entered into for inadequate consideration;
(fii) other than as required by applicable statute discharged or governmental regulationsatisfied any Encumbrance or paid or satisfied any fixed or contingent obligation or liability, any material increase in except for current obligations or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) liabilities incurred in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, business and (ii) if after the date of except as otherwise provided for in this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(giii) mortgaged, pledged or subjected any sale of a material amount of the VERITAS AssetsAssets to any Encumbrance, other than liens, if any, for current taxes not yet due and payable;
(iv) entered into any lease or rental agreement or transferred, leased, licensed or disposed of any acquisition by any member of the VERITAS Group of a material amount of assets, Assets other than in the ordinary course of business and other than new leases or renewals of any of the business, consistent leases and/or agreements to lease listed on the Seller Disclosure Schedule in accordance with past practicethe renewal rights contained therein;
(hv) waived, released, cancelled, forgiven or compromised any alteration in any term of any outstanding capital stock debt, claim or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any personright, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kvi) transferred or granted any making by right under any member of the VERITAS Group of lease, license or other agreement or with respect to any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, intangible asset other than in the ordinary course of business consistent with past practicebusiness;
(mvii) paid or agreed to pay any transfer bonus, except as outlined on the Employment and Consulting Agreements Schedule;
(viii) suffered any material casualty loss (whether or grant not covered by insurance) or any material operating or other loss;
(ix) suffered any adverse change in, or any event or events which have had or will have a material adverse effect on the Assets or the liabilities of any of the Corporation or the Holding Companies, the conduct of the Business or the condition (financial or otherwise) or prospects of the Corporation, taken as a whole;
(x) made any loan to or entered into any other transaction with any of its officers, directors, employees or shareholders giving rise to any claim or right under of, by, or against any such person. The Corporation and the VERITAS IP RightsHolding Companies are not indebted to any of its officers, directors, employees or shareholders or any other person not dealing at arms' length with the Corporation except for the RCA Loans and loans to employees not exceeding $20,000 in aggregate;
(xi) made or entered into any contract or commitment to make any individual capital expenditures in excess of $50,000 or in aggregate not more than those transferred $100,000;
(xii) declared or paid any dividend or made or agreed to make any payment or distribution to any shareholder (including purchases and redemptions of issued and outstanding shares or any other securities);
(xiii) issued, sold or granted any options, rights or warrants to purchase, or subscribe for, any shares of any corporation;
(xiv) sold or otherwise disposed of any fixed or capital assets except in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(nxv) amended or terminated any labor dispute with, contract or charge of unfair labor practice by, any member of agreement which is material to the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASBusiness; or
(oxvi) entered into any agreement by any member of the VERITAS Group or commitment to take do or cause any of the actions matters described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)above to occur.
Appears in 2 contracts
Sources: Share Purchase Agreement (Chell Group Corp), Share Purchase Agreement (Chell Group Corp)
Absence of Certain Changes or Events. Except as disclosed Since December 31, 1999, Seller has conducted the Business in the ------------------------------------ VERITAS SEC Documents filed prior to ordinary and usual course consistent with past practices and, without limiting the date generality of this Agreementthe foregoing, since the VERITAS Financial Statements Balance Sheet Date there has not occurrednot:
(a) suffered any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change Change in the trading price results of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASoperation, financial condition, Assets, Intellectual Property, business, operation or prospects relating to the Business;
(b) suffered any amendments damage, destruction or changes loss, whether or not covered by insurance, having a Material Adverse Change in the Certificate of Incorporation Assets, the Intellectual Property or Bylaws of any member of the VERITAS GroupBusiness;
(c) effected any damageacquisition, destruction to sale or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares transfer of any member material asset of the VERITAS Group (other than pursuant to arrangements with employees or consultants), Seller or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, its subsidiaries other than in the ordinary course of the business, business and consistent with past practice;
(hd) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or effected any change in the terms accounting methods or practices (including any change in depreciation or amortization policies or rates) by Seller or any revaluation by Seller of any outstanding stock optionsof its or any of its subsidiaries' assets;
(ie) declared, set aside, or paid a dividend or other distribution with respect to the shares of Seller, or directly or indirectly redeemed, purchased or otherwise acquired any of its shares of capital stock;
(f) entered into any Contract, other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance amended or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Groupterminated, or defaulted under, any securities convertible into material Contract to which Seller is a party or exchangeable for any such debt securitiesby which it is bound;
(jg) granted any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 increase in the aggregate, other than compensation payable or to refinance a liability reflected become payable by Seller to any Seller employees employed in the VERITAS Financial Statements Business, except those occurring in the ordinary course of business, consistent with Seller's past practices;
(kh) granted any making by any member of exclusive license with respect to the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than Intellectual Property;
(i) loans, advances or capital contributions made incurred any liabilities relating to the Business except in the ordinary course of the business, business and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000consistent with past practice;
(lj) any amendment of, relinquishment, termination permitted or non- renewal by VERITAS of allowed any of the VERITAS Contracts, Assets to be subjected to any Encumbrance of any kind (other than a Permitted Encumbrance) other than in the ordinary course of business consistent with past practicepractices;
(k) waived any rights under or terminated any Contract relating to the Business;
(l) with respect to the Business or the Assumed Contracts, incurred any contingent liability as guarantor or otherwise with respect to the obligations of others, other than in the ordinary course, consistent with past practices; or
(m) agreed to take any transfer action described in this Section 4.11 or grant outside of a right under the VERITAS IP Rights, other than those transferred or granted in the its ordinary course of business, consistent with past practice, except for any grant business or which would constitute a breach of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described representations or warranties of Seller contained in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tab Products Co), Asset Purchase Agreement (Docucon Incorporated)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior Goldenway Financial Statements or the Goldenway Disclosure Letter, from December 31, 2010 to the date of this Agreement, since Goldenway and its subsidiaries have conducted their business only in the VERITAS Financial Statements Balance Sheet Date ordinary course, and during such period there has not occurredbeen:
(a) any change in the assets, liabilities, financial condition or event which could reasonably be expected to operating results of Goldenway or any of its subsidiaries, except changes in the ordinary course of business that have not caused, in the aggregate, a Goldenway Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments damage, destruction or changes in the Certificate of Incorporation loss, whether or Bylaws of any member of the VERITAS Groupnot covered by insurance, that would have a Goldenway Material Adverse Effect;
(c) any damage, destruction waiver or compromise by Goldenway or any of its subsidiaries of a valuable right or of a material debt owed to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASit;
(d) any redemption, repurchase satisfaction or other acquisition of shares discharge of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants)lien, claim, or any declaration, setting aside encumbrance or payment of any dividend obligation by Goldenway or other distribution (whether any of its subsidiaries, except in cash, stock the ordinary course of business and the satisfaction or property) with respect to the capital stock discharge of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business which would not have a Goldenway Material Adverse Effect;
(e) any material increase in change to a material Contract by which Goldenway or modification any of the compensation its subsidiaries or benefits payable any of its respective assets is bound or subject;
(f) any mortgage, pledge, transfer of a security interest in, or lien, created by VERITAS Goldenway or any of its subsidiaries, with respect to become payable to the VERITAS Employeesany of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of the business, consistent with past practice business and necessary to respond to third party solicitation do not materially impair Goldenway’s or its subsidiaries’ ownership or use of VERITAS Employees;
(f) other than as required by applicable statute such property or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowassets;
(g) any sale loans or guarantees made by Goldenway or any of a material amount its subsidiaries to or for the benefit of the VERITAS Assetsits employees, officers or directors, or any acquisition by members of their immediate families, or any member of the VERITAS Group of a material amount of assetsloans or advances to any persons, corporations, business trusts, associations, companies, partnerships, limited liability companies, joint ventures and other entities, governments, agencies and political subdivision other than travel advances and other advances made in the ordinary course of the its business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock Goldenway’s method of accounting or rights to acquire capital stock the identity of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock optionsits auditors;
(i) other than in the ordinary course any declaration or payment of business, consistent with past practice, (A) any incurrence, assumption dividend or guarantee by any member distribution of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options cash or other rights property to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, Shareholder or any securities convertible into purchase, redemption or exchangeable for agreements to purchase or redeem any such debt securitiesGoldenway Stock;
(j) any creation issuance, sale, disposition or assumption encumbrance of equity securities to any officer, director or affiliate, or any change in their outstanding shares of capital stock or their capitalization, whether by any member reason of the VERITAS Group reclassification, recapitalization, stock split, combination, exchange or readjustment of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregateshares, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;stock dividend or otherwise; or
(k) any making arrangement or commitment by Goldenway or any member of the VERITAS Group of any loan, advance or capital contribution its subsidiaries to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of do any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions things described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Section 3.22.
Appears in 2 contracts
Sources: Share Exchange Agreement (Goldenway, Inc.), Share Exchange Agreement (Cyber Informatix, Inc.)
Absence of Certain Changes or Events. Except Since December 31, 1997, except as disclosed set forth in the ------------------------------------ VERITAS SEC Documents filed prior to Reports (as defined in Section 3.06(a) hereof) or the date of this AgreementCompany Disclosure Statement, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) neither the Company nor any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) Subsidiary has incurred any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, indebtedness for money borrowed except in the ordinary course and usual conduct of the Company's business; (b) neither the Company nor any Subsidiary has assumed, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute guaranteed, endorsed or governmental regulation, any material increase in or modification otherwise became responsible for the obligations of any VERITAS Group Benefit Arrangement (includingother individual, but not limited to, the granting of stock options, restricted stock awards firm or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any personcorporation, other than any member obligation relating to existing co-insurance programs and the endorsement of checks for collection in the VERITAS Group, for borrowed money in an amount exceeding $2,500,000ordinary and usual course of business; (Bc) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any there has been no creation or assumption by the Company or any member of the VERITAS Group Subsidiary of any Encumbrance (other than VERITAS Permitted Encumbrances) Lien on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
asset; (kd) any making by any member of the VERITAS Group of any there has been no loan, advance or capital contribution to or investment in any person by the Company or any Subsidiary except in the ordinary and usual conduct of the Company's business; (e) neither the Company nor any Subsidiary has entered into any contract, lease, commitment or transaction with any officer, director or any affiliate (as defined in Rule 405 of the SEC promulgated under the Securities Act) of the Company or any Subsidiary (other than pursuant to refinance consulting or employment agreements or other employee benefit arrangements); (f) there has been no transaction or commitment made, or any contract or agreement entered into, by the Company or any Subsidiary relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company or any Subsidiary of any contract or other right, which in either case is material to the Company and the Subsidiaries taken as a liability reflected in the VERITAS Financial Statements whole (other than transactions, commitments and relinquishments contemplated by this Agreement and other than sales of inventory in the ordinary and usual course of business and other than investments of a capital nature in the ordinary and usual course of business); (g) neither the Company nor any Subsidiary has purchased or leased any real property; (h) neither the Company nor any Subsidiary has leased any equipment or property other than in the ordinary and usual course of business; (i) loansthere has been no change in any method of accounting or accounting practice by the Company or the Subsidiaries; (j) there has been no grant (whether or not in writing and whether formal or informal) of any severance or termination pay to any current or former officer or employee of the Company or any Subsidiary, advances any employment, bonus, profit sharing, pension, retirement, deferred compensation, fringe benefit, or capital contributions made other similar agreement with or plan or program for (or, except as required by law, any amendment, formal or informal, to any such existing agreement with or plan or program for) any current or former officer, director, employee or consultant of the Company or any Subsidiary, any increase in benefits payable under any existing severance or termination pay policies, employment agreements, or deferred compensation or fringe benefit plan or program or any increase in compensation, bonus or other benefits payable, or to become payable, to officers, directors, employees or consultants of the Company or any Subsidiary other than increases in benefits to non-officer employees of the Company in the ordinary course of business in accordance with past practices; (k) there has been no repurchase, redemption or other acquisition by the business, and (ii) Company or any Subsidiary of any outstanding shares of capital stock or other loans and advances, where ownership interest of the aggregate amount of all such items outstanding at Company or any time does not exceed $1,000,000;
Subsidiary; (l) any amendment of, relinquishment, termination there has been no declaration or non- renewal by VERITAS payment of any dividend on, or other distribution with respect to, any capital stock of the VERITAS Contracts, Company or any Subsidiary; and (m) neither the Company nor any Subsidiary has entered into any other transaction other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements).
Appears in 2 contracts
Sources: Merger Agreement (Communications Instruments Inc), Merger Agreement (Corcom Inc)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior Interim Buyer Balance Sheet Date to the date of this Agreement (with respect to the representation and warranty made as of the date of this Agreement, since ) and to the VERITAS Financial Statements Balance Sheet Closing Date there has not occurred:(with respect to the representation and warranty made as of the Closing Date):
(a) there has not been any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price condition (financial or otherwise), operations, prospects or results of VERITAS Common Stock be deemed operations of Buyer and its Subsidiaries taken as a Material Adverse Effect on VERITASwhole;
(b) neither Buyer nor any amendments of its Subsidiaries has amended or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupchanged its Charter Documents;
(c) neither Buyer nor any damageof its Subsidiaries has declared, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock any Equity Security or any other security;
(d) neither Buyer nor any of its Subsidiaries has split, combined or reclassified any member of the VERITAS Group or, with respect to dividends Equity Security or other distributions of cash security, or property arising from the VERITAS Business issued, or authorized for issuance, any Equity Security or other security;
(e) neither Buyer nor any material increase in of its Subsidiaries has altered any term of any outstanding Equity Security or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employeesother security;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to neither Buyer nor any of the VERITAS Employees, other than its Subsidiaries has (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than except in the ordinary course of business, consistent with past practiceincreased or modified the compensation or benefits payable or to become payable by Buyer or any of its Subsidiaries to any of its current or former directors, employees, contractors or consultants, (Aii) except as provided for in this Agreement, increased or modified any incurrencebonus, assumption severance, termination, pension, insurance or guarantee by any member of the VERITAS Group of any debt of any personother employee benefit plan, other than any member of the VERITAS Grouppayment or arrangement made to, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by with any member current or former directors, employees, contractors or consultants of the VERITAS Group Buyer or any of any securities convertible into or exchangeable for their respective debt securities; its Subsidiaries, or (Ciii) issuance entered into any employment, severance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiestermination agreement;
(jg) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess the sale of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements inventory in the ordinary course of business, neither Buyer nor any of its Subsidiaries has sold, leased, transferred or assigned any property or assets of Buyer or any such Subsidiary;
(kh) neither Buyer nor any making by of its Subsidiaries has incurred, assumed or guaranteed any member Indebtedness;
(i) neither Buyer nor any of its Subsidiaries has created or assumed any Lien on any asset, except for Liens arising under lease financing arrangements existing as of the VERITAS Group Buyer Interim Balance Sheet Date and Permitted Liens;
(j) neither Buyer nor any of its Subsidiaries has made any loan, advance or capital contribution to to, or investment in in, any person Person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, travel loans or advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(mk) there has not been any transfer or grant of a right under the VERITAS IP Rightslabor dispute, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withindividual grievances, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees oremployees of Buyer or any of its Subsidiaries;
(l) none of Buyer or the Subsidiaries of Buyer has agreed or entered into any arrangement to take any action which, if taken prior to VERITAS' Knowledgethe date hereof, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASmade any representation or warranty set forth in this ARTICLE IV untrue or incorrect;
(m) there has not been any material damage, destruction or loss with respect to the property and assets of Buyer or any of its Subsidiaries, whether or not covered by insurance;
(n) neither Buyer nor any of its Subsidiaries has made any change in accounting practices;
(o) neither Buyer nor any of its Subsidiaries has made any Tax election, changed its method of Tax accounting or settled any claim for Taxes; or
(op) none of Buyer or any agreement by any member of the VERITAS Group its Subsidiaries has agreed, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (La Cortez Energy, Inc.), Stock Purchase Agreement (Avante Petroleum S.A.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS EWR SEC Documents filed prior to or the EWR Disclosure Letter, since the date of this Agreementthe most recent audited financial statements included in EWR SEC Documents (the "EWR Financial Statement Date"), since EWR and its Subsidiaries have conducted their business only in the VERITAS Financial Statements Balance Sheet Date ordinary course (taking into account prior practices, including the acquisition of properties and issuance of securities) and there has not occurred:
been (a) any material adverse change in the business, financial condition or event which could results of operations of EWR and its Subsidiaries taken as a whole (a "EWR Material Adverse Change"), nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to have result in a EWR Material Adverse Effect on VERITAS; providedChange, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments except for regular quarterly distributions not in excess of $0.41 per EWR Common Share or changes in the Certificate of Incorporation EWR Partnership Unit, respectively (or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction as necessary to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultantsmaintain REIT status), or in each case with customary record and payment dates, any authorization, declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital EWR Common Shares or the EWR OP Units, (c) any split, combination or reclassification of the EWR Common Shares or the EWR OP Units or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of stock of EWR or partnership interests in EWR partnerships or any member issuance of the VERITAS Group oran ownership interest in, with respect to dividends any EWR Subsidiary, (d) any damage, destruction or other distributions of cash loss, whether or property arising from the VERITAS Business ;
not covered by insurance, that has or would have a EWR Material Adverse Effect, (e) any material increase change in accounting methods, principles or modification of the compensation practices by EWR or benefits payable by VERITAS any EWR Subsidiary materially affecting its assets, liabilities or to become payable to the VERITAS Employeesbusiness, except insofar as may have been disclosed in the ordinary course of the businessEWR SEC Documents or required by a change in GAAP, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification amendment of any VERITAS Group Benefit Arrangement (includingemployment, but not limited toconsulting, the granting severance, retention or any other agreement between EWR and any officer or director of stock options, restricted stock awards EWR or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale acquisition or disposition of a material amount of the VERITAS Assetsany real property, or any acquisition commitment to do so, made by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting EWR or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Evans Withycombe Residential Inc)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of a consequence of, or as expressly contemplated by, this Agreement, since December 30, 2000 through and including the VERITAS Financial Statements Balance Sheet Date there has not occurreddate hereof:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than has been conducted in the ordinary course of business consistent with past practice;
(mb) the Business has not experienced any transfer events, developments or grant of changes which, individually or in the aggregate, would be reasonably likely to have, or have had, a right under Material Adverse Effect;
(c) except for the VERITAS IP Rights, other than those transferred or granted Restructuring and except in the ordinary course of business, business consistent with past practice, except for neither Parent nor any grant of a right to source code its Subsidiaries has sold, transferred, conveyed, assigned or grant otherwise disposed of any exclusive material assets or properties related to the Business;
(d) neither Parent nor any of its Subsidiaries has waived, released or canceled any material claims against third parties or debts owing to it, or any material rights which have any value and which relate to the Business, other than in the ordinary course of business consistent with past practice pursuant to Contracts which are not Material Contracts with Persons that are not Affiliates of Parent;
(e) neither Parent nor any of its Subsidiaries has made any changes in their accounting systems, policies, principles or practices related to the Business;
(f) none of the Bison Subsidiaries has authorized for issuance, issued, sold, delivered or agreed or committed to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any VERITAS IP RightsShares or any of its other securities, each or amended any of which shall the terms of any shares of its capital stock or such other securities;
(g) the Bison Subsidiaries have not made any loans, advances or capital contributions to, or investments in, any Person other than a Subsidiary of Parent;
(h) as of Closing, there will be no loans or advances outstanding between Parent and the Non-Bison Subsidiaries on the one hand, and the Bison Subsidiaries on the other hand, and the Bison Subsidiaries will not have any accounts payable to, or investments in, Parent or the Non-Bison Subsidiaries, other than accounts payable in connection with commercial transactions in the ordinary course of business consistent with past practice;
(i) except in the ordinary course of business consistent with past practice and except as set forth in Section 3.09(m3.9(e) of the VERITAS Disclosure LetterSchedule, neither Parent nor any of its Subsidiaries has increased in any manner the compensation or fringe benefits of any employee of the Business or entered into any contract, agreement, commitment or arrangement to do any of the foregoing;
(j) except in the ordinary course of business consistent with past practice, neither Parent nor any of its Subsidiaries has, except in connection with the Restructuring, acquired or leased any assets relating to the Business, or made any material amount of property of the Business, subject to any Lien whatsoever;
(k) as of Closing, no assets or property owned or leased by the Bison Subsidiaries or used in the Business will be subject to any Lien securing Balance Sheet Indebtedness;
(l) there have been no capital expenditures with respect to the Business which, in the aggregate, are in excess of one hundred fifteen million dollars ($115,000,000), except for capital expenditures not exceeding fifty-five million dollars ($55,000,000) in support of sales to Fiat by Textron Automotive Company Italia S.r.l.;
(m) neither Parent nor any of its Subsidiaries has made any material Tax election or settled or compromised any material domestic or foreign federal, national, state, provincial, county, municipal or local Tax liability, or waived or extended the statute of limitations in respect of any such Taxes in each case with respect to the Business; and
(n) neither Parent nor any labor dispute withof its Subsidiaries has paid any amount, performed any obligation or charge agreed to pay any amount or perform any obligation, in settlement or compromise of unfair labor practice by, any member suits or claims of liability with respect to the VERITAS Group (other than routine individual grievances), any activity Business or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described officers, members, managers, employees or agents of the Bison Subsidiaries in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)excess of $5,000,000.
Appears in 2 contracts
Sources: Purchase Agreement (Textron Inc), Purchase Agreement (Collins & Aikman Corp)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to Since June 30, 2007 through the date of this Agreement, since except as set forth on Schedule 3.4 of the VERITAS Financial Statements Balance Sheet Date there Company Disclosure Schedule, no Seller Party has not occurredand KNE has not:
(a) sold, assigned, transferred or licensed, or granted any change covenant not to ▇▇▇ based on, any patents, trademarks, trade names, copyrights, trade secrets or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedother intangible assets, however, that in no event will a change each case used in connection with the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASBusiness;
(b) sold, assigned, leased, licensed, transferred or otherwise disposed of any amendments of its properties or changes assets used in the Certificate Business, except Inventory sold or transferred in the ordinary course of Incorporation business consistent with past practice and obsolete or Bylaws worn out equipment sold or otherwise disposed of any member of in a manner consistent with past practice which was not otherwise material (individually or in the VERITAS Groupaggregate) to the Business;
(c) acquired any damagebusiness or Person (whether by acquisition of stock or assets, destruction to merger or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASotherwise);
(d) suffered any redemption, repurchase damage to or other acquisition destruction or casualty of shares of (whether or not covered by insurance) any member asset individually or in the aggregate material to the operation of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Business;
(e) failed to pay any material increase in or modification creditor any amount arising from the operation of the compensation or benefits payable by VERITAS or Business owed to become payable to the VERITAS Employeessuch creditor when due, except other than good faith disputes and trade payables arising in the ordinary course of the business, consistent with business and not past practice and necessary to respond to third party solicitation of VERITAS Employeesdue more than sixty (60) days;
(f) other than as required by applicable statute or governmental regulation, defaulted on any material increase in obligation related to the conduct or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation operation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowBusiness without curing such default;
(g) granted any sale of a material amount of allowances or discounts with respect to the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in Business outside the ordinary course of the business, business consistent with past practice;
(h) any alteration in any term of any outstanding capital stock practice or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset sold Inventory materially in excess of $2,500,000 in reasonably anticipated consumption for the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in near term outside the ordinary course of business consistent with past practice;
(h) amended, cancelled or terminated, or received any notice of termination of, any Assumed Contract or KNE Contract or Permit that is an Acquired Asset or entered into any Material Contract or obtained any Permit related to the Business;
(i) accelerated, terminated, modified, or cancelled any agreement, contract, lease or license necessary for or arising exclusively from the Business and involving more than $25,000;
(j) delayed or postponed the payment of accounts payable or other liabilities primarily relating to or arising exclusively from the Business, or otherwise changed the practices of any Seller Party with respect to the manner and timing of payment of accounts payable or the collection of accounts receivable;
(k) materially changed the practices of any Seller Party or KNE with respect to the procurement of supplies for use in the products of the Business;
(l) canceled, compromised, waived, or released any right or claim (or series of related rights and claims) relating exclusively to the Business and involving more than $25,000 individually or in the aggregate;
(m) paid, discharged, or satisfied any transfer claims, liabilities, or grant obligations (absolute, accrued, asserted or unasserted, contingent, or otherwise) exclusively arising from the Business which were outside of a right under the VERITAS IP Rightsordinary course of business;
(n) made or suffered any material change in the conduct or nature of any aspect of the Business, other than those transferred or granted whether made in the ordinary course of the Business or not or whether or not the change had a material adverse effect on the properties, business, financial condition or results of operations;
(o) failed to carry on the Business in the ordinary course and consistent with past practice, except for any grant of a right practice so as to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) preserve the Acquired Assets and the Business and the goodwill of the VERITAS Disclosure Lettersuppliers, customers, distributors and others having business relations with the Business;
(np) made or changed any labor dispute withelection with respect to Taxes, adopted or changed any accounting method with respect to Taxes, amended any material Tax Return relating to the Acquired Assets, entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, settled or compromised on any claim, notice, audit report or assessment with respect to Taxes, or charge of unfair labor practice by, consented to any member extension or waiver of the VERITAS Group limitation period applicable to any claim or assessment with respect to Taxes, in each case to the extent of Taxes related to KNE;
(q) without limitation by the enumeration of the foregoing, entered into any transaction other than routine individual grievances), any activity or proceeding in the usual and ordinary course of the Business as conducted by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASthe Seller Parties and KNE; or
(or) entered into any agreement by or commitment, whether in writing or otherwise, to do any member of foregoing. During such period, except as set forth on Schedule 3.4 of the VERITAS Group Company Disclosure Schedule, KNE has not:
(s) declared or paid any dividend, made any other payments or distributions (except for payments in the ordinary course of Business under arm’s length service or supply agreements) or granted any loans to take the Seller Parties;
(t) hired or promoted any employees or changed the compensation or benefits of any employee;
(u) made any lay-offs or other restructuring affecting its employees;
(v) ceased or deferred any capital expenditure in a manner that would be inconsistent with past practice;
(w) changed its accounting methods and policies;
(x) and has not entered into any agreement or commitment, whether in writing or otherwise, to do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spectranetics Corp), Asset Purchase Agreement (Kensey Nash Corp)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementOctober 5, 1998, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with terminated employees or consultantsconsultants in the ordinary course of business, consistent with past practice), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Business;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable by VERITAS to the VERITAS Employeesemployees, except in the ordinary course of the business, consistent with past practice and except as necessary to respond to third party solicitation of VERITAS Employeesemployees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if occurring after the date of this AgreementOctober 5, 1998, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,0002,500,000 in the aggregate; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 individually or in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,0002,500,000;
(l) any amendment of, relinquishment, termination or non- non-renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of Rights which shall be are set forth in Section 3.09(m3.11(h) and Section 3.11(i) of the VERITAS Disclosure Letter;
(n) any labor dispute withwith69, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign campaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements), or any change to accounting methods.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Seagate Technology Inc), Agreement and Plan of Reorganization (Seagate Technology Inc)
Absence of Certain Changes or Events. Except as disclosed set forth in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementDocuments, since the VERITAS Financial Statements Balance Sheet Date Date, except in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, the business of Seller has been conducted in the ordinary course of business consistent with past practice and there has not been or occurred:
(a) any change event, occurrence or event which development that has had, or could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments material change in any method of accounting or changes accounting practice for the Business, except as required by GAAP or as disclosed in the Certificate of Incorporation or Bylaws of any member of notes to the VERITAS GroupFinancial Statements;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, indebtedness for borrowed money in connection with the Business in an aggregate amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group50,000, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements except unsecured current obligations and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than Liabilities incurred in the ordinary course of business consistent with past practice;
(md) any transfer, assignment, sale or other disposition of any of the Purchased Assets shown or reflected in the Balance Sheet, except for the sale of Inventory in the ordinary course of business and except for any Purchased Assets (other than Intellectual Property Assets) having an aggregate value of less than $50,000;
(e) any cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets;
(f) any transfer or assignment of or grant of a right any license or sublicense under the VERITAS IP Rights, other than those transferred or with respect to any Intellectual Property Assets or Intellectual Property Agreements (except for licenses granted under any existing Intellectual Property Agreements and non-exclusive licenses or sublicenses granted in the ordinary course of business, business consistent with past practice);
(g) any abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain commercially reasonable measures to protect the confidentiality of any Trade Secrets included in the Intellectual Property Assets;
(h) any material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(i) any acceleration, termination, material modification to or cancellation of any Assigned Contract;
(j) any capital expenditures in an aggregate amount exceeding $50,000 that would constitute an Assumed Liability;
(k) any imposition of any Encumbrance upon any of the Purchased Assets other than Permitted Encumbrances;
(l) except as may be required by applicable Law or under any Material Contract or Seller Employee Plan in place as of the date hereof: (i) any increase in compensation, incentives, severance or benefits to, or entry into an employment agreement with, any employee of the Business; (ii) any adoption, amendment or termination of any collective bargaining agreement or Seller Employee Plan related to the Business; (iii) any hiring or termination of any employee, independent contractor, or temporary employee whose annual compensation or fees is, or is expected to be, at least $75,000; or (iv) conduct any group reduction in force or mass layoff;
(m) any purchase, lease or other acquisition of the right to own, use or lease any property or assets that would constitute Purchased Assets for an amount in excess of $50,000, except for any grant purchases of a right to source code equipment, Inventory or grant supplies in the ordinary course of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;business consistent with past practice; or
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof Contract to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take do any of the actions described foregoing, or any action or omission that would result in any of the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Adams Michael F), Asset Purchase Agreement (AdvanSource Biomaterials Corp)
Absence of Certain Changes or Events. (a) Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to set forth on Schedule 4.9(a), since the date of this Agreementthe Parent Interim Balance Sheet, since the VERITAS Financial Statements Balance Sheet Date there has not occurredbeen:
(ai) any Parent Material Adverse Effect;
(ii) any material loss, damage, destruction or other casualty to the assets or properties of either Parent or any of its Subsidiaries (other than any for which insurance awards have been received or guaranteed);
(iii) any change in any method of accounting or event which could reasonably be expected to have accounting practice of either Parent or any of its Subsidiaries except for any such change required by reason of a Material Adverse Effect on VERITAS; provided, however, that in no event will a concurrent change in GAAP; or
(iv) any loss of the trading price employment, services or benefits of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;the chief executive officer of Parent and members of Parent’s senior management who report directly to such chief executive officer.
(b) any amendments or changes Since the date of the Parent Interim Balance Sheet, each of Parent and each of its Subsidiaries has operated in the Certificate ordinary course of Incorporation its business and consistent with past practice and, except as set forth on Schedule 4.9(b), has not:
(i) incurred any material obligation or Bylaws liability (whether absolute, accrued, contingent or otherwise) except in the ordinary course of any member of the VERITAS Groupbusiness and consistent with past practice;
(cii) failed to discharge or satisfy any damagematerial Lien or pay or satisfy any material obligation or liability (whether absolute, destruction to accrued, contingent or loss of VERITAS assets not covered by insuranceotherwise), other than Permitted Liens and liabilities being contested in good faith and for which would adequate reserves have a Material Adverse Effect on VERITASbeen provided;
(diii) mortgaged, pledged or subjected to any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group Lien (other than pursuant to arrangements with employees Permitted Liens) any of its assets, properties or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business rights;
(eiv) sold or transferred any of its material assets or cancelled any material increase in debts or modification claims or waived any material rights;
(v) disposed of the compensation any material patents, trademarks or benefits payable by VERITAS copyrights or any material patent, trademark or copyright applications or registrations;
(vi) disclosed any of its material trade secrets, except pursuant to become payable written confidentiality obligations;
(vii) defaulted on any material obligation;
(viii) entered into any transaction material to the VERITAS Employeesits business, except in the ordinary course of the business, consistent with past practice business and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(hix) granted any alteration material increase in any term the compensation or benefits of any outstanding capital stock or rights to acquire capital stock of any member its key employees other than increases in accordance with past practice not exceeding 8% of the VERITAS Groupkey employee’s annual base compensation then in effect, includingor entered into any employment, but not limited tochange of control, acceleration retention or severance agreement or arrangement with any of the vesting or any change in the terms of any outstanding stock optionsthem;
(ix) contractually committed to make any capital expenditure for any periods after the date hereof or additions to property, plant and equipment used in its operations other than ordinary repairs and maintenance in excess of $100,000 in the ordinary course aggregate;
(xi) laid off any significant number of business, consistent with past practice, its employees;
(Axii) any incurrence, assumption or guarantee by any member of discontinued the VERITAS Group offering of any debt material services or product;
(xiii) incurred any material obligation or liability for the payment of severance benefits;
(xiv) declared, paid, or set aside for payment any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options dividend or other rights to acquire from the VERITAS Groupdistribution in respect of shares of its capital stock, membership interests or other securities, or redeemed, purchased or otherwise acquired, directly or indirectly, debt securities any shares of any member of the VERITAS Groupits capital stock, membership interests or other securities, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than agreed to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASdo so; or
(oxv) entered into any agreement by or made any member of the VERITAS Group commitment to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior Reports, from the date of the most recent financial statements contained in the SEC Reports to the date of this Agreement, since Gotham has conducted its business only in the VERITAS Financial Statements Balance Sheet Date ordinary course, and during such period there has not occurredbeen:
(a) any change in the assets, liabilities, financial condition or event which could reasonably be expected to operating results of Gotham from that reflected in the financial statements contained in the SEC Reports, except changes in the ordinary course of business that have a not caused, in the aggregate, an Gotham Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments damage, destruction or changes in the Certificate of Incorporation loss, whether or Bylaws of any member of the VERITAS Groupnot covered by insurance, that would have an Gotham Material Adverse Effect;
(c) any damage, destruction waiver or compromise by Gotham of a valuable right or of a material debt owed to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASit;
(d) any redemption, repurchase satisfaction or other acquisition of shares discharge of any member lien, claim, or encumbrance or payment of any obligation by Gotham, except in the VERITAS Group ordinary course of business and the satisfaction or discharge of which would not have an Gotham Material Adverse Effect;
(e) any material change to a material Contract by which Gotham or any of its assets is bound or subject;
(f) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(g) any mortgage, pledge, transfer of a security interest in or lien created by Gotham with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and that do not materially impair Gotham’ ownership or use of such property or assets;
(h) any loans or guarantees made by Gotham to or for the benefit of its employees, officers or directors, or any Shareholders of their immediate families, other than pursuant to arrangements with employees or consultants), or travel advances and other advances made in the ordinary course of its business;
(i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS AssetsGotham’ capital stock, or any direct or indirect redemption, purchase, or other acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital of such stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesGotham;
(j) any creation alteration of Gotham’ method of accounting or assumption by any member the identity of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of businessits auditors;
(k) any making by issuance of equity securities to any member of the VERITAS Group of any loanofficer, advance director or capital contribution affiliate, except pursuant to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;existing Gotham stock option plans; or
(l) any amendment of, relinquishment, termination arrangement or non- renewal commitment by VERITAS of Gotham to do any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions things described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Section 4.22.
Appears in 2 contracts
Sources: Securities Exchange Agreement (Gotham Capital Holdings, Inc.), Securities Exchange Agreement (IIOT-OXYS, Inc.)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has not occurredand except as specifically authorized hereunder or as set forth in Schedule 3.10:
(a) Cyberworks has not entered into any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) transaction other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(jb) any creation there have been no changes in the financial condition, results of operations, assets, liabilities, prospects or assumption by any member of the VERITAS Group of any Encumbrance (Cyberworks other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements changes in the ordinary course of business, consistent with past practice which in the aggregate have not had a Material Adverse Effect, nor any event or circumstance which could reasonably be expected to result in any such changes and, without limiting the foregoing, there has not been any damage, destruction or loss, whether or not covered by insurance, affecting any of the assets or properties of Cyberworks amounting to more than $10,000 in the aggregate;
(kc) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than Cyberworks has not (i) loansincreased or decreased any of the rates of compensation payable or to become payable to any employee, advances agent or capital contributions consultant, or granted, made or accrued any bonus, percentage compensation, service award or other like benefit to or to the credit of any such employee, agent or consultant; (ii) entered into or amended any bonus, incentive compensation, deferred compensation, profit sharing, retirement, pension, group insurance or other benefit plan or any employment or consulting agreement; (iii) created or otherwise become liable with respect to any indebtedness for money borrowed or purchase money indebtedness, except in the ordinary course of the businessbusinesses consistent with past practice; (iv) amended its Articles of Incorporation or any other charter documents; (v) issued, and (ii) other loans and advancespurchased or disposed of or contracted to issue, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment ofpurchase, relinquishment, termination or non- renewal by VERITAS dispose of any of the VERITAS Contractsits capital stock or any options, other than warrants or rights with respect thereto or interests therein; (vi) entered into, assumed, modified or terminated any contract, liability or obligation, except in the ordinary course of business business, consistent with past practice;
practice or settled, discharged or waived any right or claim without adequate consideration; (mvii) sold, leased or otherwise disposed of or encumbered in any transfer or grant of a right under the VERITAS IP Rightsway any assets, other than those transferred or granted except for sales in the ordinary course of business, consistent with past practice; (viii) acquired any property or asset, except for in the ordinary course of business, consistent with past practice; (ix) directly or indirectly declared or paid any grant of a right non-cash dividend or distribution with respect to source code its capital stock, (x) entered into any transaction with the Shareholder or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) Affiliate of the VERITAS Disclosure Letter;
Shareholder, except in the ordinary course of business consistent with past practice; or (nxi) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group agreed to take any of the actions described action specified in the preceding clauses (ai)-(x) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)hereof.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Harrison Richard T), Agreement and Plan of Reorganization (Inland Entertainment Corp)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to Since the date of this Agreementthe Pathlore Balance Sheet, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
been: (ai) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedPathlore, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(bii) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock stock, or property) with in respect to the of, any of Pathlore’s or any of its Subsidiaries’ capital stock of stock, or any member of the VERITAS Group orpurchase, with respect to dividends redemption or other distributions acquisition by Pathlore of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, Pathlore Capital Stock or any acquisition by other securities of Pathlore or its Subsidiaries or any member of the VERITAS Group of a material amount of assetsoptions, other than in the ordinary course of the businesswarrants, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock calls or rights to acquire capital stock any such shares or other securities; (iii) any granting by Pathlore of any member increase in compensation or fringe benefits, except for normal increases of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights cash compensation to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than current non-officer employees in the ordinary course of business consistent with past practice;
, (miv) any transfer payment by Pathlore or grant any of its Subsidiaries of any bonus, except for bonuses made to current employees in the ordinary course of business consistent with past practice, (v) any granting by Pathlore or any of its Subsidiaries of any increase in severance or termination pay, (vi) any entry by Pathlore or any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a right under transaction involving Pathlore of the VERITAS IP Rightsnature contemplated hereby; (vii) any material change by Pathlore in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, (viii) any revaluation by Pathlore of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable in either case other than those transferred or granted in the ordinary course of business, consistent with past practicewhich such revaluations are, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withindividually, or charge of unfair labor practice byin the aggregate, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingmaterial, or c ampaign would have a Material Adverse Effect on VERITAS; or
(oix) any agreement by Pathlore or any member of the VERITAS Group Pathlore Subsidiary to take do any of the actions things described in the preceding clauses (ai) through (nix) of this Section 2.6 (other than negotiations with SumTotal and its representatives regarding the transactions contemplated by this Agreement or the Ancillary AgreementsAgreement).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sumtotal Systems Inc), Merger Agreement (Sumtotal Systems Inc)
Absence of Certain Changes or Events. Except as disclosed set forth on Schedule 3.12, since December 31, 2008, the business and affairs of the Company and its Subsidiaries have been conducted only in the ------------------------------------ VERITAS SEC Documents filed prior ordinary course of business consistent with past practice and (i) there has been no Material Adverse Change, and (ii) no fact or condition exists or, to Parent’s and Seller’s knowledge, is contemplated or threatened which could reasonably be anticipated to result in a Material Adverse Change. Without limiting the date of this Agreementforegoing, except as set forth on Schedule 3.12, since the VERITAS Financial Statements Balance Sheet Date there has not occurredDecember 31, 2008:
(a) Neither the Company nor any change Subsidiary has borrowed any amount (or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedincreased any borrowing) or created, howeverassumed, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) guaranteed or incurred any amendments material expenses, Liabilities or changes in the Certificate of Incorporation or Bylaws obligations of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution kind (whether in cash, stock contingent or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employeesotherwise), except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, business consistent with past practice;
(hb) Neither the Company nor any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
its Subsidiaries has (i) other than in the ordinary course of businessentered into any new Material Contract (except as disclosed on Schedule 3.16), consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advanceswaived any material rights, where the aggregate amount of all such items outstanding at or (iii) entered into any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination transactions or non- renewal by VERITAS of any of the VERITAS Contracts, agreements other than in the ordinary course of business consistent with past practice;
(mc) Neither the Company nor any transfer or grant of a right under the VERITAS IP Rightsits Subsidiaries has, other than those transferred immaterial increases in benefits or granted salaries arising in the ordinary course of business, business consistent with past practice (i) increased the level of benefits under any Employee Benefit Plan, the salary or other compensation (including severance) payable or to become payable to any of the officers, directors or employees of the Company or its Subsidiaries or (ii) obligated itself to pay any bonus or other additional salary or compensation to any such officers, directors or employees or (iii) terminated any officer or other senior employee;
(d) Neither the Company nor any Subsidiary has amended, waived, rescinded or terminated (or not renewed) any existing Material Contract and no such Material Contract has accelerated, expired or terminated (and not been renewed) by its terms;
(e) Neither the Company nor any Subsidiary has made or committed to make any capital expenditure (or series of related capital expenditures) that exceeds $25,000;
(f) Neither the Company nor any Subsidiary has made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions), other than pursuant to the Computer Loan Program;
(g) Neither the Company nor any Subsidiary has sold, transferred, disposed of, or agreed to sell, transfer, or dispose of, any of its assets, properties, Intellectual Property, material know-how, invention or trade secret or other rights, other than the disposal of obsolete assets in the ordinary course of business in a value not exceeding $50,000 (individually or in the aggregate);
(h) Neither the Company nor any Subsidiary has created, permitted or incurred any Encumbrance upon any of the assets or properties of the Company or its Subsidiaries, other than any Encumbrances arising under the Credit Facility and any Permitted Encumbrances;
(i) Neither the Company nor any Subsidiary has made any material change in the manner of conducting its business or changed any method of Tax practice, accounting or accounting practices whether for general financial or Tax purposes, or any change in depreciation or amortization policies or rates adopted therein, other than changes required by applicable Law or GAAP;
(j) Neither the Company nor any Subsidiary has experienced any damage, destruction or loss to its property or assets in excess of $25,000;
(k) Neither the Company nor any Subsidiary has failed to repay any material obligation when due, except for any grant of a right to source code obligations being disputed in good faith;
(l) There has been no material revaluation by the Company or grant any Subsidiary of any exclusive rights to of its assets or liabilities, including without limitation, any VERITAS IP Rightsmaterial write-offs or material increases or decreases in any reserves, each of which shall be set forth in Section 3.09(m) nor has there been any material write-up of the VERITAS Disclosure Lettervalue of property, plant, equipment or any other asset by the Company or any Subsidiary;
(m) The Company has not declared, set aside or paid any dividend or other distribution or similar payment, other than in cash;
(n) Neither the Company nor any labor dispute with, Subsidiary has issued or charge of unfair labor practice bycommitted to issue, any member of the VERITAS Group (shares or other than routine individual grievances), equity securities or obligations or any activity securities convertible into or proceeding by a labor union exchangeable or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, exercisable for shares or c ampaign would have a Material Adverse Effect on VERITAS; orother equity interests;
(o) None of Seller, Parent, the Company or any agreement by any member of the VERITAS Group to take Subsidiary has amended, revised or changed any of the actions described charter documents, bylaws or other organizational documents of the Company or its Subsidiaries, other than any such change which may result or have resulted from the merger of ORC with and into the Company;
(p) Neither the Company nor any Subsidiary has accelerated the collection of any Accounts Receivable or delayed the payment of any accounts payables, except in the preceding clauses ordinary course of business consistent with past practices;
(aq) through Neither the Company nor any Subsidiary has suffered any strike, walkout, work stoppage or slowdown or any other new or continued event, development or condition of similar character;
(nr) Neither the Company nor any Subsidiary has, to Parent’s and Seller’s knowledge, suffered any adverse change or any threat of any adverse change in the Company’s or its Subsidiaries’ relations with, or any loss or threat of loss of, any customer which is a party to any Material Contract; and
(other than s) Neither Seller, the transactions contemplated by this Agreement Company nor any Subsidiary has entered into any commitment (contingent or otherwise) to do any of the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ICF International, Inc.), Stock Purchase Agreement (infoGROUP Inc.)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to date of the Business Balance Sheet, through the date of this Agreement, since except as otherwise contemplated, required or permitted by this Agreement, the VERITAS Financial Statements Balance Sheet Date Business has been conducted, in all material respects, in the ordinary course of business consistent with past practice and there has not occurred:
been (ai) any change event, development or event which could reasonably be expected to have state of circumstances that has had, individually or in the aggregate, a Business Material Adverse Effect on VERITAS; providedEffect, however(ii) any non-cash distribution or dividend made by any Acquired Company, that in no event will a (iii) any repurchase of equity securities by any Acquired Company, (iv) any split, combination or reclassification of any of the Acquired Companies’ capital stock or other equity interests, (v) any material change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments accounting methods, principles or changes in the Certificate of Incorporation or Bylaws practices of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group Acquired Company or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
Business, Seller, (evi) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assetsAcquired Company of, or agreement by any Acquired Company to, acquire, any business or corporation, partnership, association or other than in the ordinary course of the businessbusiness organization or division thereof, consistent with past practice;
(hvii) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Groupsale, includinglease, but not limited tolicense, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance encumbrance (other than VERITAS a Permitted EncumbrancesLien) on any VERITAS Asset in excess of $2,500,000 in the aggregate, or other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group disposition of any loan, advance properties or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS assets of any Acquired Company, except the sale, lease, license, encumbrance or disposition of the VERITAS Contracts, other than property or assets in the ordinary course of business consistent with past practice;
, (mviii) any transfer damage, destruction or grant loss, whether or not covered by insurance, with respect to the properties or assets of any Acquired Company having a right replacement cost of more than $50,000, (ix) entry by an Acquired Company into any employment, deferred compensation, severance or similar agreement (or amendment to any such agreement) with any Business Employee, or any agreement with any Business Employee to increase the compensation payable by it to any such Business Employee or to increase the coverage or benefits available under the VERITAS IP Rightsany severance pay, termination pay, vacation pay, salary continuation for disability, sick leave, deferred compensation, bonus or other than those transferred incentive compensation, insurance, pension or granted other employee benefit plan made to, for or with such Business Employees other than, in each case, in the ordinary course of business, business consistent with past practice, except for (x) any grant election by Seller relating to Taxes in respect of a right to source code the Acquired Companies or grant settlement or compromise of any exclusive rights claim relating to Taxes in respect of the Acquired Companies, (xi) entry into, amendment or termination of any material agreement to which an Acquired Company is a party or by which it is bound; (xii) any material change, whether written or oral, to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, agreement or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take understanding with any of the actions described Acquired Companies’ material suppliers or customers; (xiii) any acceleration or delay in collection of any notes or accounts receivable of the Acquired Companies in advance of or beyond their regular due dates or the dates when they would have been collected in the preceding clauses ordinary course of business consistent with past practices; (axiv) through (n) (any delay or accelerated payment of any accrued expense, trade payable or other than liability of the transactions contemplated by this Agreement Acquired Companies beyond or in advance of its due date or the Ancillary Agreements)date when such liability would have been paid in the ordinary course of business consistent with past practices; or (xv) any settlement of any claim or litigation, or filing of any motions, orders, briefs or settlement agreements in any proceeding involving the Acquired Companies before any Governmental Entity or any arbitrator.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Acorn Factor, Inc.), Stock Purchase Agreement (Renegy Holdings, Inc.)
Absence of Certain Changes or Events. Except as disclosed set forth on Schedule 6.07, since December 31, 2012, each of the Acquired Entities has conducted its businesses only in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date ordinary course and in a manner consistent with past practice and there has not occurredbeen:
(ai) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(cii) any damage, destruction to or loss of VERITAS assets (whether or not covered by insurance) with respect to any of the Acquired Assets, which would have having a Material Adverse Effect on VERITASreplacement cost of more than $50,000 for any single loss or $100,000 for all such losses;
(diii) except as required by changes in GAAP or any redemptionTax Law, repurchase any material change by the Acquired Entities in their accounting or other acquisition of shares of any member of the VERITAS Group Tax reporting methods, principles or practices;
(other than pursuant to arrangements with employees or consultants), or iv) any declaration, setting aside or payment of any dividend distributions on or distributions in respect of any Equity Interests of any Acquired Entity;
(v) any (A) issuance of any Equity Interests in any Acquired Entity, (B) redemption, purchase or other distribution acquisition by any Acquired Entity of any Equity Interests of any Acquired Entity or (whether C) any split, combination or reclassification of any Equity Interests of any Acquired Entity;
(vi) any entry into, or amendment of, any employment, consulting, severance, change in cash, stock control or property) indemnification agreement or any agreement with respect to the capital stock any retention bonus with any employee of any member Acquired Entity or any other Person, or any incurrence of, entry into or amendment of the VERITAS Group or, with respect any collective bargaining agreement or obligation to dividends or other distributions of cash or property arising from the VERITAS Business any labor organization;
(evii) any material increase or acceleration of the benefits under, or the establishment or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, option (including the granting of equity options, equity appreciation rights, performance awards or restricted equity awards), equity purchase or other employee benefit plan, or any increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employeespartners, members, directors, officers, employees or Contractors of any Acquired Entity, except for increases in salaries or wages payable or to become payable in the ordinary course of the business, consistent with past practice business and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(gviii) any sale making by any Acquired Entity of a any material amount election relating to Taxes, the rescission by any Acquired Entity of any material election relating to Taxes or the settlement or compromise of any material Claim relating to Taxes;
(ix) any entry by any Acquired Entity into any commitment, arrangement or transaction with any director, officer, member, partner or holder of any Equity Interest in any Acquired Entity;
(x) any revaluation by any Acquired Entity of any of its assets or properties, including the writing down of the VERITAS Assets, value of inventory or any acquisition by any member the writing down or off of the VERITAS Group of a material amount of assetsnotes or Accounts Receivable, other than in the ordinary course of the business, business and consistent with past practicepractices;
(hxi) any alteration in any term material acquisition of any outstanding capital stock assets, business or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
Person (i) other than the purchase of assets from suppliers or vendors in the ordinary course of business, business consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities);
(jxii) any creation sale, transfer, lease, exchange or assumption other disposition of any material assets or properties owned or leased by any member of the VERITAS Group of any Encumbrance Acquired Entity (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice);
(mxiii) any pending order for, any capital expenditures, or capital additions or betterments made by or on behalf of any Acquired Entity in excess of $50,000 in the aggregate;
(xiv) any waiver, release, discharge, transfer or grant cancellation by any Acquired Entity of a right under any debt or Claim or the VERITAS IP Rightsamendment, cancellation, termination, relinquishment, waiver or release of any Contract or right, other than those transferred or granted such actions in the ordinary course of business, business consistent with past practicepractice and, except for any grant of a right in the aggregate, not material to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure LetterAcquired Entities;
(nxv) any labor dispute withcommencement or settlement of any material legal actions, suits or other legal proceedings;
(xvi) the creation of any Lien, other than Permitted Liens, on any assets or properties owned or leased by any Acquired Entity;
(xvii) any discharge or satisfaction of any Lien, or charge payment of unfair labor any obligation or liability (fixed or contingent), except as is in the ordinary course of business consistent with past practice byand not material to the Acquired Entities;
(xviii) any entry by any Acquired Entity into any commitment, any member of arrangement or transaction material to the VERITAS Group Acquired Entities, taken as a whole (other than routine individual grievancesthis Agreement and the transactions contemplated hereby);
(xix) any material increase (including by way of guaranteeing or assuming the obligations of third Persons to repay indebtedness for borrowed money) in the Acquired Entities’ indebtedness for borrowed money;
(xx) any material change in the manner in which any Acquired Entity extends discounts or credits to customers or any material change in the manner or terms by which the any of the Acquired Entities collects its Accounts Receivables or otherwise deals with customers;
(xxi) any failure by the Acquired Entities to pay trade accounts payable or any other liability of any Acquired Entity when due (other than trade accounts payable that are subject to dispute in the ordinary course of business and are, individually and in the aggregate, not material to the Acquired Entities);
(xxii) any activity actual, pending or proceeding by to the Knowledge of any MCE Party threatened change that might reasonably be expected to result in a labor union material deterioration in the relationship of any Acquired Entity with any material customer, supplier, distributor or representative thereof sales representative;
(xxiii) any loan to organize or from any VERITAS Employees Acquired Entity to or from any partner, member, director, officer, employee or Contractor of such Acquired Entity;
(xxiv) any written notification or, to VERITAS' Knowledgethe Knowledge of any MCE Party, any campaign being conducted oral notification or other indication from any material customer, supplier, distributor or sales representative that any such entity is terminating or intends to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, terminate its master services agreements or c ampaign would have a Material Adverse Effect on VERITASContract with any Acquired Entity; or
(oxxv) any agreement by any member of the VERITAS Group Contract to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated foregoing, except as expressly permitted by this Agreement or the Ancillary Agreements)Agreement.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (New Source Energy Partners L.P.)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date ------------------------------------ Date, there has not occurredbeen any:
(a) any change in Seller's condition (financial or event which otherwise) that could reasonably be expected to have a Material an Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(bi) except for normal periodic increases in the ordinary course of business consistent with past practices, increase in the compensation payable or to become payable by Seller to any of its officers, employees or agents (collectively, "Personnel"), (ii) any amendments bonus, incentive compensation, service --------- award or changes other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of any of the Personnel, (iii) any employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by Seller for any Personnel except pursuant to the existing plans and arrangements described in the Certificate of Incorporation Disclosure Schedule or Bylaws of (iv) any member of the VERITAS Groupnew employment or ------------------- consulting agreement to which Seller is a party;
(c) any damage, destruction addition to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation employee benefit plans, arrangements or benefits payable by VERITAS or to become payable to the VERITAS Employees, except practices described in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, Disclosure Schedule affecting ------------------- Personnel other than (i) contributions made for fiscal years 1996 and 1997 in accordance with the ordinary course normal practices of the business, consistent with past practice, Seller or to respond to third party solicitation of VERITAS Employees, and (ii) if the extension of coverage to other Personnel who became eligible after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;Balance Sheet Date as set forth in the Disclosure Schedule; -------------------
(gd) sale, assignment or transfer of any sale of a material amount of the VERITAS AssetsPurchased Assets of Seller, material singly or any acquisition by any member of in the VERITAS Group of a material amount of assetsaggregate, other than in the ordinary course of the business, business and consistent with past practicepractices;
(he) any alteration in any term cancellation of any outstanding capital stock indebtedness or rights to acquire capital stock waiver of any member rights of the VERITAS Groupsubstantial value to Seller, including, but whether or not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kf) any making by any member of the VERITAS Group amendment, cancellation or termination of any loanContract, advance license or capital contribution other instrument of substantial value to the Purchased Assets, the Business or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loansSeller, advances whether or capital contributions made not in the ordinary course of business;
(g) capital expenditure or the businessexecution of any Lease or any incurring of liability therefor by Seller, outside the ordinary course of business and not consistent with past practices, or involving payments in excess of $50,000 in the aggregate;
(h) failure to repay any obligation of Seller;
(i) failure to operate the Business in the ordinary course and consistent with past practices, including, without limitation, any failure to acquire Machines on a routine basis, and to preserve the Business intact, to keep available to Buyer the services of the Personnel, or to preserve for Buyer the goodwill of Seller's suppliers, customers and others having business relations with it;
(iij) other loans and advanceschange in accounting methods or practices by Seller affecting its earnings, where reserves, working capital, prospects, liabilities, Business or the aggregate amount Purchased Assets;
(k) revaluation by Seller of all such items outstanding at any time does not exceed $1,000,000of the Purchased Assets or properties, including without limitation, writing off notes or accounts receivable;
(l) any amendment ofdamage, relinquishmentdestruction or loss (whether or not covered by insurance) adversely affecting the Facilities, termination the Purchased Assets, the Business or non- renewal by VERITAS the condition (financial or otherwise) or prospects of Seller;
(m) mortgage, pledge or other Encumbrance of any of the VERITAS ContractsPurchased Assets;
(n) declaration, setting aside or payment of dividends or distributions in respect of any equity securities of Seller or any redemption, purchase or other than acquisition of any of Seller's equity securities;
(o) issuance by Seller of, or commitment of Seller to issue, any shares of stock, obligations or securities of Seller convertible into or exchangeable for shares of stock or other equity securities;
(p) Indebtedness incurred by Seller for borrowed money or any commitment to borrow money entered into by Seller, or any loans made or agreed to be made by Seller, except as approved by Buyer prior to the incurrence thereof;
(q) liabilities incurred not in the ordinary course of business and consistent with past practicepractices, or any increase or change in any assumptions underlying or methods of calculating any bad debt, contingency or other reserves;
(mr) payment, discharge or satisfaction of any transfer or grant of a right under the VERITAS IP Rights, liabilities other than those transferred the payment, discharge or granted satisfaction in the ordinary course of business, business and consistent with past practice, except for any grant practice of a right to source code liabilities reflected or grant reserved against in the Balance Sheet or incurred in the ordinary course of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of business and consistent with past practice since the VERITAS Disclosure LetterBalance Sheet Date;
(ns) activity which has resulted or may, with the passage of time or the giving of notice or otherwise, result in the acceleration or delay of the collection of its accounts or notes receivable or any labor dispute withdelay in the payment of its accounts payable, in each case as compared with its custom and practice in the conduct of the Business immediately prior to the Balance Sheet Date;
(t) loan or advance of any of Seller's funds or other property to, or charge guarantee for the benefit of, or any investment of unfair labor practice byany of its funds or other property in, any member other Person;
(u) receipt of any notice or other indication by Seller (i) from any of its suppliers to the VERITAS Group effect that such supplier may stop, or decrease the rate of, supplying products or services to Seller; (ii) from any of its customers to the effect that such customer may stop, or decrease the rate of, buying services from Seller; or (iii) with respect to any of its significant suppliers or customers to the effect that any of such suppliers or customers have or are reasonably likely to experience an event or condition which may have a material adverse effect on such suppliers or customers;
(v) other event or condition of any character which, in any one case or in the aggregate, has, or any event or condition known to Seller (other than routine individual grievances)matters of general public knowledge relating to general economic conditions or Seller's industry as a whole) which could, in any activity one case or proceeding by a labor union or representative thereof in the aggregate, reasonably be expected to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material result in an Adverse Effect on VERITASEffect; or
(ow) any agreement by any member of the VERITAS Group Seller or its Representatives to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing, as applicable.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Coinmach Corp), Asset Purchase Agreement (Coinmach Laundry Corp)
Absence of Certain Changes or Events. Except Since December 31, 1999, except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of contemplated by this Agreement, the Seller, the Seller's Bank and the Seller's Subsidiaries have conducted their businesses only in the ordinary course and in manners consistent with past practice and, since December 31, 1999, except as set forth in Section 4.10 of the VERITAS Financial Statements Balance Sheet Date Seller Disclosure Schedule, there has not occurred:
been (a) either individually or in the aggregate, any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedEffect, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments material damage, destruction or changes in the Certificate of Incorporation loss with respect to any property or Bylaws of any member asset of the VERITAS Group;
Seller, the Seller's Bank or any of the Seller's Subsidiaries, (c) any damagechange by the Seller, destruction to the Seller's Bank or loss any of VERITAS assets not covered the Seller's Subsidiaries in its accounting methods, principles or practices, other than changes required by insuranceapplicable law or GAAP or regulatory accounting as concurred in by the Seller's independent accountants, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of revaluation by the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited toSeller, the granting of stock options, restricted stock awards Seller's Bank or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term Seller's Subsidiaries of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Groupasset, including, but not limited towithout limitation, acceleration any writing down of the vesting value of inventory or any change in the terms writing off of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption notes or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractsaccounts receivable, other than in the ordinary course of business consistent with past practice;
, (me) any transfer entry by the Seller, the Seller's Bank or grant any of a right under the VERITAS IP Rights, Seller's Subsidiaries into any contract or commitment (other than those transferred with respect to Loans, as hereinafter defined) of more than $200,000, (f) any declaration, setting aside or granted payment of any dividend or distribution in respect of any capital stock of the Seller, the Seller's Bank or any of the Seller's Subsidiaries except in the ordinary course of businessbusiness in an amount consistent with past practice or any redemption, purchase or other acquisition of any of its securities, (g) except as would have been permitted by Section 6.01(b)(ix) hereof, 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 restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or employees of the Seller, the Seller's Bank or any of the Seller's Subsidiaries, or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any other material action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of the Seller, the Seller's Bank or any of the Seller's Subsidiaries, (h) any strike, work stoppage, slowdown or other labor disturbance, (i) any material election made by the Seller, the Seller's Bank or any of the Seller's Subsidiaries for federal or state income tax purposes, (j) any change in the credit policies or procedures of the Seller, the Seller's Bank or any of the Seller's Subsidiaries, the effect of which was or is to make any such policy or procedure materially less restrictive in any material respect, (k) any material liability or obligation of any nature (whether accrued, absolute, contingent or otherwise and whether due or to become due), including without limiting the generality of the foregoing, liabilities as guarantor under any guarantees or liabilities for taxes, other than in the ordinary course of business consistent with past practice, except for (l) any grant of a right to source code forgiveness or grant cancellation of any exclusive rights indebtedness or contractual obligation other than in the ordinary course of business consistent with past practice, (m) except with respect to funds borrowed by the Seller, the Seller's Bank or any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
Seller's Subsidiaries, any mortgage, pledge, lien or lease of any assets, tangible or intangible, of the Seller, the Seller's Bank or any of the Seller's Subsidiaries with a value in excess of $25,000 in the aggregate (n) any labor dispute withacquisition or disposition of any assets or properties having a value in excess of $100,000, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), contract for any activity such acquisition or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingdisposition entered into, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member lease of the VERITAS Group to take any of the actions described real or personal property entered into, other than in connection with foreclosed property or in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)ordinary course of business consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Financial Services Corp), Merger Agreement (Home Port Bancorp Inc)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to Since the date of this AgreementVGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since the VERITAS Financial Statements Balance Sheet Date such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not occurredbeen or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price VGX on any of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASits Subsidiaries;
(b) any amendments resignation or changes in the Certificate termination by VGX or any of Incorporation or Bylaws its Subsidiaries of any member of the VERITAS Groupexecutive officer or director;
(c) any damagewritten notice of any actual or threatened termination by any material customer, destruction to supplier, partner, licensor, licensee or loss other third party having business relations with VGX or any of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASits Subsidiaries;
(d) any redemptiondamage, repurchase destruction or other acquisition of shares of loss (whether or not covered by insurance) materially and adversely affecting any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants)material assets, or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member material portion of the VERITAS Group orassets, with respect to dividends of VGX or other distributions any of cash its Subsidiaries or property arising from materially and adversely affecting the VERITAS Business business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX 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 or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of the business, business and consistent with past practice and necessary practices, or pursuant to respond existing contractual commitments), including the making of any loan to third party solicitation of VERITAS Employees;
such person (f) other than as required by applicable statute or governmental regulationadvancement of routine travel, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, entertainment and other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowbusiness expenses);
(g) any sale of a material amount transaction of the VERITAS Assets, or any acquisition by any member type described in Item 404(a) of Regulation S-K of the VERITAS Group of a material amount of assets, other than in the ordinary course rules and regulations of the business, consistent with past practiceSecurities and Exchange Commission (the "SEC");
(h) any alteration 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 VGX'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 term of any outstanding capital stock one case or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change $1,000,000 in the terms of any outstanding stock optionsaggregate;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee material change by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, VGX or any securities convertible into of its Subsidiaries in its accounting methods, principles or exchangeable for any such debt securitiespractices, except as required by concurrent changes in US GAAP;
(j) any creation material revaluation by VGX or assumption by any member of the VERITAS Group its Subsidiaries of any Encumbrance (of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group establishment, termination or amendment of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000VGX Employee Plan;
(l) any amendment material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, relinquishmentany of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, termination redemption or non- renewal other acquisition by VERITAS VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the VERITAS Contractsterms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries 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) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business consistent with past practiceunder the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(mp) any transfer split, combination or grant reclassification of a right under any of VGX Capital Stock or the VERITAS IP Rightscapital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, other than those transferred in lieu of or granted in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(nt) any labor dispute withindebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or charge any loans made or agreed to be made by VGX or any of unfair labor practice byits Subsidiaries, any member of the VERITAS Group (other than routine individual grievances), reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any activity commencement of Legal Proceedings by VGX or proceeding by a labor union any of its Subsidiaries;
(v) any acquisition or representative thereof to organize disposition of any VERITAS Employees or, to VERITAS' Knowledge, equity interest in any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASother Person; or
(ow) any agreement by VGX or any member of the VERITAS Group its Subsidiaries to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)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. 6.11.1. Except as disclosed expressly contemplated or permitted by this Agreement, and other than the reasonable and customary fees and expenses incurred in connection with the ------------------------------------ VERITAS SEC Documents filed prior to the date of transactions contemplated by this Agreement, since January 29, 2000, the VERITAS Financial Statements Balance Sheet Date business of Gart and its Subsidiaries has been conducted in all material respects in the ordinary course of business consistent with past practices, neither Gart nor any of its Subsidiaries has engaged in any transaction or series of related transactions material to Gart or its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practices, and there has not occurredbeen any event, occurrence or development that, individually or in the aggregate, constitutes or would constitute a Material Adverse Effect on the Company.
6.11.2. Without limiting the generality of the foregoing Section 6.11.1, since January 29, 2000, except as set forth in Section 6.11.2 of the Gart Disclosure Schedule, there has not been:
(a) any change damage, destruction or event which could reasonably be expected loss to have any of the assets or properties of Gart or any of its Subsidiaries that, individually or in the aggregate, constitutes a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASGart;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, capital stock or property) with or capital return in respect to the of any shares of Gart's capital stock or any redemption, purchase or other acquisition by Gart or any of its Subsidiaries of any member shares of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS AssetsGart's capital stock, or any acquisition repurchase, redemption or other purchase by Gart or any member of the VERITAS Group its Subsidiaries of a any outstanding shares of capital stock or other securities of, or other ownership interests in, Gart or any of its Subsidiaries, or any amendment of any material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock security of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting Gart or any change in the terms of any outstanding stock optionsits Subsidiaries;
(i) other than in the ordinary course of business, consistent with past practice, (Ac) any incurrencesale, assumption or guarantee by any member of the VERITAS Group of any debt of any personassignment, other than any member of the VERITAS Grouptransfer, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options lease or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Groupdisposition, or any securities convertible into agreement to sell, assign, transfer, lease or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment otherwise dispose of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, assets of Gart or any of its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicepractices;
(d) any acquisition (by merger, consolidation, or acquisition of stock or assets) by Gart 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 indebtedness by Gart or any of its Subsidiaries other than pursuant to (A) the Gart Credit Facility in the ordinary course of business or (B) lease financings for equipment used in the operation of the businesses of Gart or any of its Subsidiaries in the ordinary course of business; or any creation or assumption by Gart 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 Gart or any of its Subsidiaries;
(g) any revaluing in any material respect of any of the assets of Gart or any of its Subsidiaries on the Gart Financials, including, without limitation, writing down the value of any assets or inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices;
(h) any loan, advance or capital contribution made by Gart or any of its Subsidiaries to, or investment in, any Person other than loans, advances or capital contributions, or investments of Gart made in the ordinary course of business consistent with past practices;
(i) any waiver, direct or indirect, by Gart 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 Gart or any of its Subsidiaries, except for non-material waivers and payments made in the ordinary course of business consistent with past practices;
(j) any change in or amendment to Gart's or any of its Subsidiaries' certificate of incorporation, by-laws or other organizational documents;
(k) 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 Gart, any of its Subsidiaries, or any Affiliate of any of them, or any business or entity in which Gart, 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 Gart (including benefits received by such officers and employees as a result of their participation in Gart 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;
(l) any material modification or change in any Gart Insurance Policy that would result in a diminishment of coverage under such Gart Insurance Policy;
(m) any transfer or grant acquisition of a right under the VERITAS IP Rightsfee simple interest or a leasehold or subleasehold interest in, other than those transferred or granted in the ordinary course any sale, assignment, disposition, transfer, pledge, mortgage or lease of, any real property owned or leased by Gart or any of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterits Subsidiaries;
(n) any labor dispute withissuance, sale or disposition of any capital stock or other equity interest in Gart, except upon the valid exercise of options in accordance with the terms thereof, or charge any issuance or grant of unfair labor practice byany options, warrants or other rights to purchase any member of the VERITAS Group (other than routine individual grievances), any activity such capital stock or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingequity interest, or c ampaign would have a Material Adverse Effect on VERITAS; orany securities convertible into or exchangeable for such capital stock or equity interest, or any other change in the issued and outstanding capitalization of Gart;
(o) any agreement by amendment, alteration or modification in the terms of any member currently outstanding options, warrants or other rights to purchase any capital stock or equity interest in Gart or any securities convertible into or exchangeable for such capital stock or equity interest, including, without limitation, any reduction in the exercise or conversion price of any 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;
(p) any closure, shut down or other elimination of any of Gart's stores or offices or any material change in the basic character of its business, properties or assets, other than any store closures effected or proposed to be effected as set forth in Section 6.11.2 of the VERITAS Group Gart Disclosure Schedule;
(q) any action that, if it had been taken after the date hereof, would have required the consent of the Company under Section 7.1; and
(r) any agreement to take any of the actions described specified in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Section 6.11.2, 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 disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date and except as set forth on the Disclosure Schedule there has not occurredbeen:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a Any adverse change in the trading price financial condition, assets, liabilities, earnings, business or prospects of VERITAS Common Stock be deemed LD Services, which is material to LD Services, taken as a whole ("Material Adverse Effect on VERITASChange");
(b) Any destruction, damage to, or loss of any amendments of LD Services' material assets (whether or changes not covered by insurance) used or useable in the Certificate of Incorporation or Bylaws of any member of the VERITAS GroupBusiness;
(c) Any labor dispute or other event or condition of any damage, destruction to or loss of VERITAS assets not covered by insurance, character which would have constitutes a Material Adverse Effect on VERITASChange;
(d) Any change in accounting methods or practices by LD Services (including, without limitation, any redemptionchange in depreciation, repurchase amortization or other acquisition of shares valuation policies or rates) or revaluation of any member of its assets, liabilities or reserves reflected on the VERITAS Group (other than pursuant to arrangements with employees or consultants)Balance Sheet, or any declarationchange in any assumption underlying or methods of calculating any bad debt, setting aside or payment of any dividend contingency or other distribution (whether in cash, stock or property) with respect reserves related to the capital stock Business other than the change of any member of LD Services from an S corporation to a C corporation for tax purposes and a corresponding change from cash to accrual basis accounting, which should take place at the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Actual Closing;
(e) Except as has been expressly approved in writing by IXC-LD, any material of the following: an increase in the salary or modification of the other compensation or benefits payable by VERITAS or to become payable by LD Services to any of its officers, directors, independent contractors or employees; the VERITAS Employeesdeclaration, except payment, or commitment or obligation of any kind for the payment, by LD Services, of a bonus or other additional salary or compensation to any such person; the repayment by LD Services of any loan from such person; or the payment by LD Services of any accrued but unpaid salaries, dividends, distributions or any other payments, whether in the ordinary course of the businesscash or property, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employeesany such person;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other Other than in the ordinary course of business consistent with past practice, any amendment or termination of any Contract, Permit or other agreement related to LD Services' assets or the Business, or by which LD Services or any of its assets or properties used or useable in connection with the Business are subject;
(g) Other than in the ordinary course of business consistent with past practice, any cancellation of indebtedness or waiver or release of any material right or claim of LD Services related in any way to the Business;
(h) Any declaration of or agreement to declare or make, any payment or distribution of any assets used or useable in connection with the Business of any kind whatsoever;
(i) Other than in the ordinary course of business consistent with past practice, any sales, transfers, disposal of or agreements to sell, transfer or otherwise dispose of any of the assets, properties or rights of LD Services related to the Business;
(j) Other than in the ordinary course of business consistent with past practice, any capital expenditure or incurring of any obligation to make any capital expenditure in connection with the conduct of the Business;
(k) Any making of any loan by LD Services to any person or entity;
(l) Any creation or assumption of any mortgage, pledge or other Encumbrance on any asset of LD Services;
(m) Any failure to pay or satisfy when due any transfer or grant obligation of LD Services except where such failure would not constitute a right under the VERITAS IP Rights, other Material Adverse Change;
(n) Other than those transferred or granted in the ordinary course of business, business consistent with past practice, except for any grant of a right to source code disposition or grant lapsing of any exclusive rights Intellectual Property or any disclosure to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(mperson (other than persons subject to confidentiality agreements) of the VERITAS Disclosure Letterany Intellectual Property not theretofore a matter of public knowledge;
(no) Any other event or condition of any labor dispute withcharacter which it is reasonable to expect will, individually or charge of unfair labor practice by, any member of in the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have aggregate constitute a Material Adverse Effect on VERITASChange; or
(op) any Any agreement by any member of LD Services or the VERITAS Group Shareholders to take do or cause any of the actions things described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreementso), above.
Appears in 2 contracts
Sources: Stock Acquisition Agreement and Plan of Merger (Ixc Communications Inc), Stock Acquisition Agreement and Plan of Merger (Ixc Communications Inc)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to Since the date of the Reference Balance Sheet, except (i) as disclosed on the Company Disclosure Letter, the Company SEC Documents or the Company Reports, (ii) as permitted pursuant to Section 7.1 hereof, (iii) as expressly contemplated by the Spin-Off Agreements, and (iv) as the changes or events enumerated in this AgreementSection 5.10 would not, since either individually or in the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) any change or event which could reasonably be expected to aggregate, have a Material Adverse Effect on VERITAS; providedthe Company, however, that in no event will a change the Company and each of its Subsidiaries has operated its business only in the trading price of VERITAS Common Stock be deemed a ordinary course consistent with past practice, and there has not been any:
(a) Material Adverse Effect on VERITASChange in respect of the Company;
(b) acquisition by the Company or any amendments of its Subsidiaries by merger, consolidation or changes in the Certificate purchase (including by purchase of Incorporation all or Bylaws of any member substantially all of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants)assets, or any declaration, setting aside material assets or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employeesbusiness), except in the ordinary course for acquisitions of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions assets made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(mc) acquisition, directly or indirectly, by the Company or any of its Subsidiaries, by redemption or otherwise, of any shares of capital stock of the Company or any of its Subsidiaries;
(d) declaration or payment of any dividends on any shares of capital stock of the Company or any of its Subsidiaries;
(e) (i) increase in the compensation payable or to become payable by the Company or its Subsidiaries to any of their respective officers, employees or agents (collectively, "PERSONNEL") whose total compensation for services rendered to the Company or its Subsidiaries is currently at an annual rate of more than $75,000 (except for increases in the ordinary course of business consistent with past practice), (ii) bonus, incentive compensation, service award or other like benefit, which are set forth in the Company Disclosure Letter, and which have been granted, made or accrued, contingently or otherwise, for or to the credit of any of the Personnel (except for bonuses, incentive compensation, service awards or other like benefits granted, made or accrued in the ordinary course of business consistent with past practice), (iii) employee welfare, pension, retirement, profit-sharing, insurance or similar payment or arrangement made or agreed to by the Company or any of its Subsidiaries for any Personnel except pursuant to the existing plans and arrangements described in the Company Disclosure Letter or (iv) any transfer agreement, arrangement or grant transaction with any of its directors, officers, employees or shareholders (or with any beneficiary or with a right under member of such persons' "immediate family" as such term is defined in the VERITAS IP Rightsinstructions to paragraph (a) of Item 404 of Regulation S-K of the regulations of the SEC (hereinafter, an "IMMEDIATE FAMILY MEMBER")), including, without limitation, any retention, change in control or non-competition agreement or arrangement;
(f) addition to or modification of any Company Benefit Plan affecting Personnel other than: (i) contributions made in accordance with the normal practices of the Company and its Subsidiaries or (ii) the extension of coverage to other Personnel who became eligible after the date of the Reference Balance Sheet;
(g) sale (other than those transferred or granted sales of inventory in the ordinary course of business), lease, assignment, transfer or other disposition of any material assets or properties of the Company or its Subsidiaries other than in the ordinary course;
(h) cancellation of any indebtedness or waiver of any claims or rights of substantial value to the Company and its Subsidiaries, taken as a whole, or mortgage, pledge or imposition of any material Liens on any material asset or property of the Company or any of its Subsidiaries;
(i) entry into, amendment, cancellation or termination by the Company or any of its Subsidiaries of any Contract, license or other instrument material to the Company and its Subsidiaries, taken as a whole;
(j) capital expenditure or the execution of any lease or any incurring of liability therefore by the Company or any of its Subsidiaries, involving payments in excess of $250,000 individually or $500,000 in the aggregate, except in the ordinary course consistent with past practicepractices;
(k) failure to operate the business of the Company and its Subsidiaries in the ordinary course so as to use reasonable efforts to preserve the business intact, except for to keep available the services of the Personnel, and to preserve the goodwill of the suppliers, customers and others having business relations with the Company or its Subsidiaries;
(l) change in accounting methods or practices by the Company or its Subsidiaries;
(m) material revaluation by the Company or any grant of a right to source code or grant its Subsidiaries of any exclusive rights to any VERITAS IP Rightsof their respective assets, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterincluding without limitation, writing off notes, Accounts Receivable or inventory;
(n) damage, destruction or loss (whether or not covered by insurance) of any labor dispute with, asset or charge of unfair labor practice by, any member property of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; orCompany and its Subsidiaries;
(o) any indebtedness incurred by the Company or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by the Company or any of its Subsidiaries, or any loans made or agreed to be made by the Company or any of its Subsidiaries, except for indebtedness, commitments or loans not exceeding $250,000 in the aggregate;
(p) any assets or properties of the Company or any of its Subsidiaries (whether tangible or intangible) permitted or allowed to be subjected to any Lien, other than (i) Permitted Liens and (ii) Liens that will be released at or prior to the Closing;
(q) any material changes in the customary methods of operations of the business of the Company or its Subsidiaries, including, without limitation, practices and policies relating to the process of collecting plasma, manufacturing, purchasing, inventories, marketing, selling and pricing;
(r) issuances by the Company or any of its Subsidiaries of any purchase orders or any other agreement to make any purchases of supplies involving exchanges in value in excess of $250,000 individually;
(s) discounting by the Company or any of its Subsidiaries of the Accounts Receivable;
(t) any material Permit that was issued or relates to the Company or its Subsidiaries that was allowed to lapse or terminate or failure to renew any such Permit or any insurance policy that is scheduled to terminate or expire within 60 calendar days of the Closing Date;
(u) termination, discontinuation, closing or disposition of any office, plant, facility or other material business operation by the Company or any of its Subsidiaries, or any lay off of employees by the Company or any of its Subsidiaries, or implementation of any early retirement, separation or program providing early retirement window benefits by the Company or any of its Subsidiaries or announcement or planning of any such action or program by the Company or any of its Subsidiaries for the future;
(v) any express or deemed settlement or compromise by the Company or any of its Subsidiaries of any material liability with respect to Taxes;
(w) amendment or restatement of the certificate of incorporation or the by-laws (or other organizational documents) of the Company or any Subsidiary;
(x) to the Company's knowledge, any material action, suit, claim or pending or threatened investigation by any member Governmental Entity or Industry Compliance Entity (as hereinafter defined) against the Company or its Subsidiaries or any of their officers or directors; and
(y) agreement, whether oral or written, by the VERITAS Group Company or any of its Subsidiaries to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
Absence of Certain Changes or Events. (a) Except as may be set forth in Section 4.9(a) of the Company Disclosure Schedule, or as disclosed in the ------------------------------------ VERITAS 2007 Audited Financial Statements or the June 30 Unaudited Financial Statements (together the “Financial Statements”) or any Company Report (as defined in Section 4.5) filed with the SEC Documents filed prior to the date of this Agreement, since December 31, 2007, neither the VERITAS Company nor any Subsidiary of the Company, as applicable, had any liabilities, obligations or loss contingencies of any nature (whether absolute, accrued, contingent or otherwise) of a type required to be reflected in such Financial Statements Balance Sheet Date there has or the footnotes thereto or any Company Report which are not occurred:
(a) any change fully reflected or event reserved against therein or fully disclosed in a footnote thereto, except for liabilities, obligations and loss contingencies which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change are not material individually or in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments aggregate or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than are incurred in the ordinary course of business, consistent with past practicepractice and subject, in the case of any unaudited statements, to normal, recurring audit adjustments and the absence of footnotes.
(Ab) any incurrence, assumption or guarantee by any member Except as may be set forth in Section 4.9(b) of the VERITAS Group Company Disclosure Schedule or as disclosed in the Financial Statements or any Company Report filed with the SEC prior to the date of any debt of any personthis Agreement, other than any member of since December 31, 2007 the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for Company and its Subsidiaries have carried on their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements businesses in the ordinary course of business;consistent with their past practices.
(kc) any making by any member Except as may be set forth in Section 4.9(c) of the VERITAS Group Company Disclosure Schedule, since December 31, 2007 neither the Company nor any of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than its Subsidiaries has (i) loanswith respect to any executive officer or director, advances increased the wages, salaries, compensation, pension, or capital contributions made other fringe benefits or perquisites payable from the amount thereof in the ordinary course effect as of the businessDecember 31, and 2007 (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than increases in wages or salaries with respect to any such individual equaling less than 10%), granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus (except for bonus payments and severance or termination payments made in the ordinary course of business consistent with past practice;
practices), (mii) suffered any transfer or grant of a right under the VERITAS IP Rightsstrike, other than those transferred or granted in the ordinary course of businesswork stoppage, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withslowdown, or charge of unfair other labor practice bydisturbance, any member of the VERITAS Group (iii) been a party to a collective bargaining agreement, contract or other than routine individual grievances), any activity agreement or proceeding by understanding with a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingorganization, or c ampaign would have a Material Adverse Effect on VERITAS; or
(oiv) had any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)union organizing activities.
Appears in 2 contracts
Sources: Merger Agreement (Republic First Bancorp Inc), Merger Agreement (Pennsylvania Commerce Bancorp Inc)
Absence of Certain Changes or Events. Except Since December 31, 1999, except as set forth in SECTION 4.7 of the Schedule, the Company and its Subsidiaries have conducted their business in the ordinary course, consistent with past practice. Without limiting the generality of the foregoing, since December 31, 1999, except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member SECTION 4.7 of the VERITAS Group;
Schedule, (ci) neither the Company nor any of its Subsidiaries has sustained any material damage, destruction to or loss by reason of VERITAS assets fire, flood, accident or other calamity (whether or not covered by insurance); (ii) there have been no material adverse changes in the condition (financial or otherwise), which would have a Material Adverse Effect on VERITAS;
business, net worth, assets, properties, obligations or liabilities (dfixed or otherwise) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), Company or any declaration, setting aside of its Subsidiaries; (iii) neither the Company nor any of its Subsidiaries has incurred any material liability or obligation for the payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other money extending more than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement one year (including, but not limited to, the granting of stock options, restricted stock awards liabilities or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for obligations under or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assetscapital leases), or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than except for operating leases entered into in the ordinary course of business; (iv) neither the Company nor any of its Subsidiaries has paid any obligation or liability (fixed or contingent) except current liabilities included in the December 1999 Balance Sheet and current liabilities incurred since December 31, consistent 1999 in the ordinary course of business or pursuant to the terms of this Agreement; (v) the Company has not declared any other dividend or other distribution on or with past practice, (A) respect to any incurrence, assumption Shares or guarantee by any member other securities of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000Company; (Bvi) issuance the Company has not purchased, redeemed or sale by any member of the VERITAS Group of any securities convertible into or exchangeable otherwise acquired for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Groupconsideration, directly or indirectly, debt any Shares or other securities of the Company; (vii) neither the Company nor any member of the VERITAS Groupits Subsidiaries has disposed of, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than agreed to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment dispose of, relinquishment, termination any material property or non- renewal by VERITAS of any of the VERITAS Contractsasset, other than in the ordinary course of business consistent with past practice;
and for a consideration at least equal to the fair market value of such property or asset; (mviii) neither the Company nor any transfer of its Subsidiaries has made any expenditures or grant commitments for the purchase, acquisition, construction or improvement of a right under capital asset except in the VERITAS IP Rightsordinary course of business and in an aggregate amount not exceeding $100,000; (ix) neither the Company nor any of its Subsidiaries has repaid Indebtedness (as hereinafter defined) of the Company or any of its Subsidiaries to any affiliates of the Company or any of its Subsidiaries; (x) neither the Company nor any of its Subsidiaries has incurred any Indebtedness, other than those transferred or granted Indebtedness incurred in the ordinary course of business; (xi) neither the Company nor any of its Subsidiaries has amended its Certificate of Incorporation or By-Laws; and (xii) except as set forth above, consistent with past practice, except for neither the Company nor any grant of a right to source code its Subsidiaries has entered into any other transaction or grant contract other than in the ordinary course of any exclusive rights to any VERITAS IP Rights, each of which shall be business. Except as set forth in Section 3.09(m) SECTION 4.7 of the VERITAS Disclosure Letter;
Schedule, there are no scheduled, and the Company does not expect to make any, dividends on other distributions (nwhether cash, stock or otherwise) on or respect to any labor dispute withShares or other securities of the Company between the date of the Agreement and the Cut-Off Date. For purposes of this Agreement, "INDEBTEDNESS" means any liability, whether or not contingent, (i) in respect of borrowed money or evidenced by bonds, notes, debentures, or charge of unfair labor practice bysimilar instruments, any member (ii) representing the balance deferred and unpaid of the VERITAS Group purchase price of any property (other than routine individual grievances)including pursuant to capital leases) but excluding trade payables, any activity or proceeding by a labor union or representative thereof if and to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take extent any of the actions described foregoing indebtedness would appear as a liability upon a balance sheet prepared on a consolidated basis in accordance with GAAP, (iii) guaranties, direct or indirect, in any manner, of all or any part of any Indebtedness of any Person and (iv) any penalties, fees and expenses relating to prepayment or otherwise with respect to any of the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Serengeti Eyewear Inc), Merger Agreement (Sunshine Acquisition Inc)
Absence of Certain Changes or Events. Except as disclosed in (a) Since December 31, 2024 (the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements “Buyer Balance Sheet Date Date”), there has not occurred:
been (ai) any change or event development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows, or properties of Buyer or any of its Subsidiaries which could has had, or would reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; providedwith respect to Buyer, howeverand to the Knowledge of the Buyer, that in no event will a change in the trading price of VERITAS Common Stock be deemed fact or condition exists which is reasonably expected to cause a Material Adverse Effect on VERITAS;
with respect to the Company in the future, (bii) any amendments change by Buyer or changes any of its Subsidiaries in the Certificate of Incorporation its accounting methods, principles or Bylaws of any member of the VERITAS Group;
(c) any damagepractices, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees changes required or consultants)permitted by applicable Law or GAAP or regulatory accounting as concurred in by Buyer’s independent accountants, or (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the of any capital stock of Buyer or any member of the VERITAS Group orits Subsidiaries or any redemption, with respect to dividends purchase or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractsits securities, other than in the ordinary course of business consistent with past practice;
, (miv) any transfer material election made by Buyer or grant any of a right under its Subsidiaries for federal or state income Tax purposes other than in the VERITAS IP Rightsordinary course of business consistent with past practice, (v) any material change in the credit policies or procedures of Buyer 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 real estate owned in the ordinary course of business and consistent with past practice, any material acquisition or disposition of any 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 those transferred in connection with foreclosed property or granted in the ordinary course of business consistent with past practice.
(b) Since the Buyer Balance Sheet Date, the Buyer 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 Buyer or any of its Subsidiaries into any contract or commitment of more than (A) $500,000 in the aggregate or (B) $250,000 per annum with a term of more than one year, other than borrowings, loans, loan commitments and Buyer Benefit Plans in the ordinary course of business, consistent with past practiceor (ii) any increase in or establishment of any bonus, except for severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, acceleration of vesting pursuant to any Buyer Benefit Plan, or any other increase in the compensation payable or to become payable to any directors, officers or employees of Buyer or any of its Subsidiaries, or any grant of a right severance or termination pay, or any contract or arrangement entered into to source code make or grant any severance or termination pay, or any payment of any exclusive rights bonus, unless such aforementioned actions were required by Law or Buyer Benefit Plan or were conducted in the ordinary course of business with respect to any VERITAS IP Rightsthe compensation or employment or engagement of directors, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withofficers, or charge employees of unfair labor practice byBuyer or any of its Subsidiaries, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledgeindividually or in the aggregate, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, did not or c ampaign would not have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member Buyer’s financial condition or results of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)operations.
Appears in 2 contracts
Sources: Merger Agreement (Eastern Bankshares, Inc.), Merger Agreement (HarborOne Bancorp, Inc.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior (a) Since January 1, 2005 to the date of this Agreement, the Seller and the Seller Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since the VERITAS Financial Statements Balance Sheet Date January 1, 2005, there has not occurred:
been (ai) any change in the financial condition, results of operations or event business of the Seller and any of the Seller Subsidiaries which could reasonably be expected to have has had a Seller Material Adverse Effect on VERITAS; providedEffect, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(cii) any damage, destruction to or loss of VERITAS assets (whether or not covered by insurance, ) with respect to any assets of the Seller or any of the Seller Subsidiaries which would have has had a Seller Material Adverse Effect on VERITAS;
Effect, (diii) any redemptionchange by the Seller in its accounting methods, repurchase principles or other acquisition of shares practices, (iv) any revaluation by the Seller of any member of its assets in any material respect, (v) except for regular quarterly cash dividends on the VERITAS Group (other than pursuant Seller Common Stock with usual record and payment dates, to arrangements with employees or consultants)the date of this Agreement, or and the publicly-announced stock repurchase program, any declaration, declaration setting aside or payment of any dividend dividends or distributions in respect of shares of Seller Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends its securities or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of Seller Subsidiary, (vi) any increase in the VERITAS Groupwages, salaries, bonuses, compensation, pension, or other fringe benefits or perquisites payable to any securities convertible into executive officer, employee, or exchangeable for director or any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group grant of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregateseverance or termination pay, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than except in the ordinary course of business consistent with past practice;
practices, (mvii) any transfer strike, work stoppage, slow-down or grant of a right under other labor disturbance, (viii) the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant execution of any exclusive rights to any VERITAS IP Rightscollective bargaining agreement, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, contract or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity agreement or proceeding by understanding with a labor union or representative thereof to organize organization, or (ix) any VERITAS Employees or, to VERITAS' union organizing activities.
(b) To Seller’s Knowledge, no third party has used, with or without permission, the corporate name, the trademarks, trade names, service marks, logos, symbols or similar intellectual property of Seller or any campaign being conducted Seller Subsidiary in connection with the marketing, advertising, promotion or sale of such third party’s products or services. Neither Seller nor any Seller Subsidiary is a party to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, any joint marketing or c ampaign would have other affinity marketing program with a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)third party.
Appears in 2 contracts
Sources: Merger Agreement (Gold Banc Corp Inc), Merger Agreement (Marshall & Ilsley Corp/Wi/)
Absence of Certain Changes or Events. Except as disclosed Since December 31, 2006, Sellers have conducted the Business in the ------------------------------------ VERITAS SEC Documents filed prior to ordinary and usual course consistent with past practices and, without limiting the date generality of this Agreementthe foregoing, since the VERITAS Financial Statements Balance Sheet Date there has not occurrednot:
(a) suffered any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change Change in the trading price results of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASoperation, financial condition, Assets, Intellectual Property, business, operation or prospects relating to the Business;
(b) suffered any amendments damage, destruction or changes loss, whether or not covered by insurance, having a Material Adverse Change in the Certificate of Incorporation Assets, the Intellectual Property or Bylaws of any member of the VERITAS GroupBusiness;
(c) effected any damageacquisition, destruction to sale or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares transfer of any member material asset of the VERITAS Group (other than pursuant to arrangements with employees or consultants), Company or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, its subsidiaries other than in the ordinary course of the business, business and consistent with past practice;
(hd) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or effected any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the terms Company or any revaluation by the Company of any outstanding stock optionsof its or any of its subsidiaries’ assets;
(ie) except for a $290,000 dividend paid in the first quarter of 2007, declared, set aside, or paid a dividend or other distribution with respect to the shares of the Company, or directly or indirectly redeemed, purchased or otherwise acquired any of its shares of capital stock;
(f) entered into any Contract, other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance amended or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Groupterminated, or defaulted under, any securities convertible into material Contract to which either Seller is a party or exchangeable for any such debt securitiesby which either Seller is bound;
(jg) granted any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 increase in the aggregate, other than compensation payable or to refinance a liability reflected become payable by Sellers to any the Company employees employed in the VERITAS Financial Statements Business, except those occurring in the ordinary course of business, consistent with Sellers’ past practices;
(kh) granted any making by any member of licenses with respect to the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than Intellectual Property;
(i) loans, advances or capital contributions made incurred any Liabilities relating to the Business except in the ordinary course of the business, business and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000consistent with past practice;
(lj) any amendment of, relinquishment, termination permitted or non- renewal by VERITAS of allowed any of the VERITAS Contracts, Assets to be subjected to any Encumbrance of any kind (other than a Permitted Encumbrance) other than in the ordinary course of business consistent with past practicepractices;
(k) waived any rights under or terminated any Contract relating to the Business;
(l) with respect to the Business or the Assumed Contracts, incurred any contingent Liability as guarantor or otherwise with respect to the obligations of others, other than in the ordinary course, consistent with past practices; or
(m) agreed to take any transfer action described in this Section 4.11 or grant outside of a right under the VERITAS IP Rights, other than those transferred or granted in the its ordinary course of business, consistent with past practice, except for any grant business or which would constitute a breach of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described representations or warranties of Sellers contained in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ocz Technology Group Inc), Asset Purchase Agreement (Ocz Technology Group Inc)
Absence of Certain Changes or Events. . Except as disclosed described in the ------------------------------------ VERITAS SEC Documents filed prior to Schedule 4.6, since the date of this Agreement, since the VERITAS Financial Statements Most Recent Balance Sheet Date there has not occurredSheet:
(a) any 4.6.1 no material adverse change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change has occurred in the trading price financial condition, results of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASoperations, assets, liabilities, income or prospects of the Licensed Operations or Acquired Assets;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any 4.6.2 no material damage, destruction to or loss of VERITAS assets (whether or not covered by insurance, which would have a Material Adverse Effect on VERITAS) has occurred affecting the Acquired Assets;
(d) 4.6.3 except in the ordinary course of business of Seller in accordance with existing Hospital personnel policies, Seller has not increased or agreed to increase the compensation payable to any redemptionof the employees, repurchase contractors or service providers of Seller or made or agreed to make any bonus or severance payment to any of the employees, contractors or service providers of Seller and Seller has not employed any additional management personnel in respect of the Licensed Operations;
4.6.4 no labor dispute or enactment of state or local Law, promulgation of state or local regulation, or other acquisition of shares event or condition has occurred materially adversely affecting the Licensed Operations or the Acquired Assets;
4.6.5 Seller has not sold, assigned, transferred, distributed or otherwise disposed of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS EmployeesAcquired Assets, except in the ordinary course of business of Seller and under the business, consistent with past practice and necessary to respond to third party solicitation operations of VERITAS Employeesthe Interim Management Services Agreement;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to 4.6.6 no Encumbrance has been imposed on any of the VERITAS Employees, other than (i) Acquired Assets except Permitted Encumbrances;
4.6.7 Seller has not cancelled or waived any rights in the ordinary course respect of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Acquired Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than except in the ordinary course of business consistent with past practiceof Seller;
(m) 4.6.8 there has been no material change in any transfer accounting method, policy or grant practice of a right under Seller, except as pursuant to the VERITAS IP RightsInterim Management Services Agreement, other than those transferred with respect to the Acquired Assets or granted in Licensed Operations;
4.6.9 Seller has not entered into or agreed to enter into any transaction outside the ordinary course of business, consistent with past practicebusiness of Seller which may cause a liability or obligation of Seller in excess of Seventy-Five Thousand Dollars ($75,000), except for any grant of a right as pursuant to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;Interim Management Services Agreement; and
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) 4.6.10 Seller has not entered into any agreement by or on behalf of Seller with any member of physician, except as pursuant to the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Interim Management Services Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Absence of Certain Changes or Events. Except as disclosed in expressly contemplated by this Agreement and the ------------------------------------ VERITAS SEC Transaction Documents filed prior to or as set forth on the Earlychildhood Disclosure Schedule, since the date of this Agreementthe Earlychildhood Balance Sheet, Earlychildhood has conducted its businesses only in the ordinary course and in a manner consistent with past practice, and, since such date, there has been no material adverse change in the VERITAS Financial Statements Balance Sheet Date financial condition, results of operations, business, assets or properties of Earlychildhood or any of its Subsidiaries, taken as a whole (an "Earlychildhood Material Adverse Change") or any development or combination of developments of which the management of Earlychildhood is aware that, individually or in the aggregate, has had, or is reasonably likely to have, an Earlychildhood Material Adverse Effect, and, since such date, there has not occurredbeen any:
(a) any change (i) issuance of LLC Interests, or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedoptions or rights therefor, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees the Earlychildhood Option Plans through the date hereof; (ii) purchase, redemption, retirement or consultants)other acquisition by Earlychildhood of any LLC Interest, parts of any LLC Interest or other rights or equity interests in Earlychildhood or any declaration, setting aside of its Subsidiaries; or (iii) declaration or payment of any dividend or other distribution (whether or payment in cash, stock or property) with respect to the capital stock of any member LLC Interest, parts of the VERITAS Group or, with respect to dividends any LLC Interest or other distributions of cash rights or property arising from the VERITAS Business ;
(e) any material increase equity interests in Earlychildhood or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employeesits Subsidiaries, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements tax distributions made in the ordinary course of business;
(kb) amendment to the organizational documents of Earlychildhood or any making of its Subsidiaries (including the Operating Agreement);
(c) payment by Earlychildhood or any of its Subsidiaries of any bonuses, salaries or other compensation (including management or other similar fees but excluding tax distributions) to any shareholder or member, as applicable, managing member, member of the VERITAS Group Management Committee or executive officer (except for payments of any loansalary, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements bonuses and other than (i) loans, advances or capital contributions made compensation payable for employment services rendered in the ordinary course of the businessbusiness (in which case there has been no increase in such payments)) or entry into any employment, and (ii) other loans and advances, where the aggregate amount of all severance or similar contract with any such items outstanding at any time does not exceed $1,000,000person;
(ld) any amendment of, relinquishment, termination or non- renewal by VERITAS adoption of any new Employee Benefit Plan or Benefit Arrangement (each as defined below) for or with any employees of Earlychildhood or any Earlychildhood ERISA Affiliate or any increase in the VERITAS Contractspayment to or benefits under any Earlychildhood Plan or other benefit obligations for or with any employees of Earlychildhood or any Earlychildhood ERISA Affiliate or change any actuarial or other assumption used to calculate funding obligations with respect to any Earlychildhood Employee Benefit Plans or Benefit Arrangements, or any change in the manner in which contributions to any Earlychildhood Employee Benefit Plans or Benefit Arrangements are made or the basis on which such contributions are determined;
(e) damage to or destruction or loss of any asset or property of Earlychildhood or any of its Subsidiaries, whether or not covered by insurance, that would have an Earlychildhood Material Adverse Effect;
(f) sale, lease or other disposition of any material asset or property of Earlychildhood or any of its Subsidiaries (other than sales of inventory in the ordinary course of business);
(g) accrual of any expenses except for such accruals in the ordinary course of business;
(h) cancellation or waiver of any claims or rights by Earlychildhood or any of its Subsidiaries that would have an Earlychildhood Material Adverse Effect;
(i) assumption, guarantee or endorsement or other agreement to become responsible for the obligations of any other individual, firm or corporation (other than intercompany obligations) or making of any loans or advances to, any employee of Earlychildhood or any of its Subsidiaries, other than in the ordinary course of business consistent business;
(j) material change by Earlychildhood or its Subsidiaries in their respective accounting methods, principles or practices to which SmarterKids has not previously consented in writing, except insofar as may be appropriate for changes required by applicable law or GAAP;
(k) revaluations by Earlychildhood or its Subsidiaries of any of their respective assets having an Earlychildhood Material Adverse Effect;
(l) agreement, whether oral or written, by Earlychildhood or any of its Subsidiaries, with past practice;respect to or to do any of the foregoing; or
(m) any transfer other action or grant event that would have required the consent of a right under SmarterKids pursuant to Section 5.1 of this Agreement had such action or event occurred after the VERITAS IP Rightsdate of this Agreement, other than those transferred and that, individually or granted in the ordinary course of businessaggregate, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withhas had, or charge of unfair labor practice byis reasonably likely to have, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a an Earlychildhood Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Effect.
Appears in 2 contracts
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc), Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of a consequence of, or as expressly contemplated by, this Agreement, since December 30, 2000 through and including the VERITAS Financial Statements Balance Sheet Date there has not occurreddate hereof:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than has been conducted in the ordinary course of business consistent with past practice;
(mb) the Business has not experienced any transfer events, developments or grant of changes which, individually or in the aggregate, would be reasonably likely to have, or have had, a right under Material Adverse Effect;
(c) except for the VERITAS IP Rights, other than those transferred or granted Restructuring and except in the ordinary course of business, business consistent with past practice, except for neither Parent nor any grant of a right to source code its Subsidiaries has sold, transferred, conveyed, assigned or grant otherwise disposed of any exclusive material assets or properties related to the Business;
(d) neither Parent nor any of its Subsidiaries has waived, released or canceled any material claims against third parties or debts owing to it, or any material rights which have any value and which relate to the Business, other than in the ordinary course of business consistent with past practice pursuant to Contracts which are not Material Contracts with Persons that are not Affiliates of Parent;
(e) neither Parent nor any of its Subsidiaries has made any changes in their accounting systems, policies, principles or practices related to the Business;
(f) none of the Bison Subsidiaries has authorized for issuance, issued, sold, delivered or agreed or committed to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any VERITAS IP RightsShares or any of its other securities, each or amended any of which shall the terms of any shares of its capital stock or such other securities;
(g) the Bison Subsidiaries have not made any loans, advances or capital contributions to, or investments in, any Person other than a Subsidiary of Parent;
(h) as of Closing, there will be no loans or advances outstanding between Parent and the Non-Bison Subsidiaries on the one hand, and the Bison Subsidiaries on the other hand, and the Bison Subsidiaries will not have any accounts payable to, or investments in, Parent or the Non-Bison Subsidiaries, other than accounts payable in connection with commercial transactions in the ordinary course of business consistent with past practice;
(i) except in the ordinary course of business consistent with past practice and except as set forth in Section 3.09(m3.9(e) of the VERITAS Disclosure LetterSchedule, neither Parent nor any of its Subsidiaries has increased in any manner the compensation or fringe benefits of any employee of the Business or entered into any contract, agreement, commitment or arrangement to do any of the foregoing;
(j) except in the ordinary course of business consistent with past practice, neither Parent nor any of its Subsidiaries has, except in connection with the Restructuring, acquired or leased any assets relating to the Business, or made any material amount of property of the Business, subject to any Lien whatsoever;
(k) as of Closing, no assets or property owned or leased by the Bison Subsidiaries or used in the Business will be subject to any Lien securing Balance Sheet Indebtedness;
(l) there have been no capital expenditures with respect to the Business which, in the aggregate, are in excess of one hundred fifteen million dollars ($115,000,000), except for capital expenditures not exceeding fifty-five million dollars ($55,000,000) in support of sales to Fiat by Textron Automotive Company Italia s.r.l.;
(m) neither Parent nor any of its Subsidiaries has made any material Tax election or settled or compromised any material domestic or foreign federal, national, state, provincial, county, municipal or local Tax liability, or waived or extended the statute of limitations in respect of any such Taxes in each case with respect to the Business; and
(n) neither Parent nor any labor dispute withof its Subsidiaries has paid any amount, performed any obligation or charge agreed to pay any amount or perform any obligation, in settlement or compromise of unfair labor practice by, any member suits or claims of liability with respect to the VERITAS Group (other than routine individual grievances), any activity Business or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described officers, members, managers, employees or agents of the Bison Subsidiaries in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)excess of $5,000,000.
Appears in 2 contracts
Sources: Purchase Agreement (Textron Inc), Purchase Agreement (Collins & Aikman Corp)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior Balance Sheet Date to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) there has not been any change or event which could reasonably be expected to have a Company Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) neither the Company nor any amendments of its Subsidiaries has amended or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupotherwise modified its Charter Documents;
(c) neither the Company nor any damageof its Subsidiaries has declared, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, stock or property) with respect to any of its securities;
(d) neither the capital stock Company nor any of its Subsidiaries has altered any term of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business their respective outstanding securities;
(e) neither the Company nor any material increase in of its Subsidiaries has sold, leased, transferred or modification assigned any property or assets of the compensation Company or benefits payable by VERITAS or to become payable to the VERITAS Employeesany of its Subsidiaries, except in for the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of inventory and the grant of Out-Bound Licenses on a material amount of the VERITAS Assetsnon-exclusive basis, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than each case in the ordinary course of business consistent with past practice;
(mf) neither the Company nor any transfer of its Subsidiaries has incurred, assumed or grant guaranteed Indebtedness for a material amount, or materially modified the terms of a right under any material Indebtedness outstanding as of the VERITAS IP Rights, Balance Sheet Date in each case other than those transferred or granted then in the ordinary course of businessbusiness consistent with past practice ;
(g) neither the Company nor any of its Subsidiaries has incurred any material Liability or created or assumed any Lien on any asset, except for Permitted Liens, Liens arising under lease financing arrangements existing as of the Balance Sheet Date and Liens for taxes not yet due and payable with respect to which the Company maintains adequate reserves;
(h) neither the Company nor any of its Subsidiaries has made any loan, advance or capital contribution to, or investment in, a material amount in any Person other than travel loans or advances in the ordinary course of business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(ni) there has not been any labor dispute withdispute, other than individual grievances, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees oremployees of the Company or any of its Subsidiaries;
(j) there has not been any material damage, destruction or loss with respect to VERITAS' Knowledgematerial property and assets of the Company or any of its Subsidiaries, whether or not covered by insurance;
(k) neither the Company nor any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor unionof its Subsidiaries has made any material change in accounting practices;
(l) neither the Company nor any of its Subsidiaries has made any Tax election, where such dispute, practice, activity, proceeding, changed its method of Tax accounting or c ampaign would have a Material Adverse Effect on VERITASsettled any claim for Taxes; or
(om) neither the Company nor any agreement by any member of the VERITAS Group its Subsidiaries has agreed, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Valeant Pharmaceuticals International), Merger Agreement (Valeant Pharmaceuticals International)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior Balance Sheet Date to the date of this Agreement (with respect to the representation and warranty made as of the date of this Agreement, since ) and to the VERITAS Financial Statements Balance Sheet Closing Date there has not occurred:(with respect to the representation and warranty made as of the Closing Date):
(a) no change in the condition (financial or otherwise), operations, prospects or results of operations of the Business or Seller or any change or event which could reasonably be expected to have Seller Subsidiary has caused a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) neither Seller nor any amendments Seller Subsidiary has declared, set aside or changes paid any dividend or other distribution in the Certificate of Incorporation stock or Bylaws of property (other than Excluded Assets) with respect to any member of the VERITAS GroupEquity Security or Debt Security, except for cash dividends or other cash distributions or to repay any intercompany debt;
(c) neither Seller nor any damage, destruction to Seller Subsidiary has (i) increased or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of modified the compensation or benefits payable by VERITAS or to become payable by such entity to the VERITAS Employeesany current or former directors, except in the ordinary course employees, consultants or contractors of the businessBusiness, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(fii) other than as required by applicable statute increased or governmental regulation, modified or terminated any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited Plan made to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any current or former directors, employees, consultants or contractors of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practiceBusiness, or (iii) entered into any employment, severance or termination agreement Related to respond to third party solicitation of VERITAS Employeesthe Business, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements except in the ordinary course of business;
(kd) neither Seller nor any making by Seller Subsidiary has sold, leased, transferred or assigned any member of property or assets Related to the VERITAS Group of any loan, advance or capital contribution to or investment in any person Business (other than to refinance a liability reflected in the VERITAS Financial Statements and other than Excluded Assets), except for (i) loansthe sale of Inventory, advances or capital contributions made (ii) the grant of non-exclusive Out-Bound Licenses, and (iii) the sale of obsolete Equipment, in each case in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business Business consistent with past practice;
(me) neither Seller nor any transfer Seller Subsidiary has incurred, assumed or grant of a right under guaranteed any Indebtedness Related to the VERITAS IP Rights, Business (other than those transferred Excluded Liabilities);
(f) neither Seller nor any Seller Subsidiary has mortgaged, pledged or granted subjected to Liens any assets, properties or rights Related to the Business (other than Excluded Assets), except for Liens arising under lease financing arrangements existing as of the Balance Sheet Date and Permitted Liens;
(g) neither Seller nor any Seller Subsidiary has entered into, amended, modified, canceled or waived any rights under, any Material Contract in any material respect, and no Material Contract has been terminated or cancelled;
(h) neither Seller nor any Seller Subsidiary has taken any action outside the ordinary course of businessthe Business, consistent with past practicein any material respect;
(i) there has not been any violation of, except for or conflict with, any grant of a right material applicable Law or any Business Authorization;
(j) neither Seller nor any Seller Subsidiary has agreed, or entered into any arrangement, to source code take any action which, if taken prior to the date hereof, would have made any representation or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be warranty set forth in Section 3.09(m) this Article IV untrue or incorrect as of the VERITAS Disclosure Letter;date when made; and
(nk) neither Seller nor any labor dispute withSeller Subsidiary has agreed, whether in writing or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees orotherwise, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Composite Technology Corp), Asset Purchase Agreement (Composite Technology Corp)
Absence of Certain Changes or Events. Except as disclosed set forth in the ------------------------------------ VERITAS KBL SEC Documents Reports filed prior to the date of this Agreement, and except as contemplated by this Agreement, since the VERITAS Financial Statements Balance Sheet Date September 30, 2008, there has not occurred:
been: (ai) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedKBL, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(bii) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulationof, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS AssetsKBL’s capital stock, or any purchase, redemption or other acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term KBL of any outstanding of KBL’s capital stock or any other securities of KBL or any options, warrants, calls or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting such shares or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practicesecurities, (Aiii) any incurrencesplit, assumption combination or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS reclassification of any of the VERITAS ContractsKBL’s capital stock, other than (iv) any granting by KBL of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice;
(m) , or any transfer or grant payment by KBL of a right under the VERITAS IP Rightsany bonus, other than those transferred or granted except for bonuses made in the ordinary course of business, business consistent with past practice, except for or any grant granting by KBL of any increase in severance or termination pay or any entry by KBL into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a right transaction involving KBL of the nature contemplated hereby, (v) entry by KBL into any licensing or other agreement with regard to source code the acquisition or grant disposition of any exclusive rights Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any VERITAS IP Rightslicensing agreement filed or required to be filed by KBL with respect to any Governmental Entity, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(nvi) any labor dispute withmaterial change by KBL in its accounting methods, principles or charge practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of unfair labor practice byKBL, (viii) any member issuance of capital stock of KBL, (ix) any revaluation by KBL of any of its assets, including, without limitation, writing down the VERITAS Group (value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of KBL other than routine individual grievances)in the ordinary course of business or (x) any agreement, any activity whether written or proceeding by a labor union or representative thereof to organize any VERITAS Employees ororal, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements).foregoing
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (KBL Healthcare Acquisition Corp III)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreementset forth on Schedule 5.4, since the VERITAS Financial Statements Balance Sheet Date Date, there has not occurred:
been any material adverse effect on the business, operations, results of operations, assets, properties or financial condition of the Business; excluding (ai) the failure of any change of the employees of Sellers other than those listed on Schedule 7.6 to accept employment with the Buyer or event which could reasonably be expected to have a FTI or (ii) the effect of any delisting of the capital stock of Nextera from the Nasdaq SmallCap Stock Market ("Material Adverse Effect on VERITAS; providedEffect"). Nextera has not declared, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class, redemption or series of its capital stock or property) with respect other equity interests. In addition to the foregoing, none of Sellers nor Nextera have:
(a) authorized or issued capital stock of Sellers or Nextera; granted any member stock option or right to purchase shares of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of Sellers or Nextera; issued any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms security convertible into such capital stock; granted of any outstanding stock optionsregistration rights; purchased, redeemed, retired, or otherwise acquired, by Sellers or Nextera, any shares of any such capital stock; or declared or paid any dividend or other distribution in respect of shares of such capital stock;
(i) other than in the ordinary course of businesssold, consistent with past practiceleased, (A) any incurrence, assumption transferred or guarantee by any member of the VERITAS Group disposed of any debt of material assets or rights or (ii) acquired or leased any personmaterial assets or rights;
(c) paid, discharged or satisfied any material liability, obligation or lien with respect to underlying obligations, other than any member payment, discharge or satisfaction of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, Indebtedness as it matured and became due and payable; (ii) other loans and advancesliabilities, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination obligations or non- renewal by VERITAS of any of the VERITAS Contracts, other than liens in the ordinary course of business consistent with past practice; or (iii) as otherwise specifically contemplated by this Agreement;
(d) materially (i) changed any of the accounting or tax principles, practices or methods or (ii) changed reserve policies or reserves;
(i) made any change in the compensation payable to any of its officers, directors, employees, consultants, agents or sales associates (other than general increases in wages to employees and/or payments to consultants, agents or sales associates in the ordinary course consistent with past practice), (ii) entered into or amended any material employment, severance, consulting, termination, other agreement or (iii) made any material change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(i) paid or made any accrual or arrangement for payment of any pension, retirement allowance, unused vacation days or other employee benefit to any officer, director, employee, sales associate or affiliate, except payments and accruals made in the ordinary course consistent with past practice; (ii) adopted or paid, granted, issued, accelerated or accrued salary or other payments or benefits which include any payment in equity or cash payments pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement except, in each case, in the ordinary course; or (iii) amended in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(g) made any borrowing or agreement to borrow funds by Sellers or incurred any other obligation or liability, contingent or otherwise, which would remain as a liability of the Business following the Closing, except liabilities reflected on the June Balance Sheet; or any endorsement, assumption or guarantee of payment or performance of any loan or obligation of any other individual, firm, corporation or other entity which would remain as a liability of the Business following the Closing, except as reflected on the June Balance Sheet;
(h) made any mortgage, pledge, lien, security interest, hypothecation, charge or other encumbrance with respect to the Assets;
(i) made any material write downs of the value of any Asset or any material write downs as uncollectible of any accounts receivable or portion thereof;
(j) made any payments (other than compensation in the ordinary course consistent with past practice), loans, advances or other distributions to, or entered into any transaction, agreement or arrangement with, any affiliates, officers, directors, employees, sales associates, stockholders or their respective affiliates;
(k) made or authorized any capital expenditures, except in the ordinary course consistent with past practice or not in excess of Twenty-Five Thousand Dollars ($25,000) individually or One Hundred Thousand Dollars ($100,000) in the aggregate;
(l) settled or compromised any material Tax liability or agreed to any adjustment of any material Tax attribute or made any election with respect to Taxes;
(m) made any transfer material change in its working capital practices generally, including accelerating any collections of cash or grant of a right under the VERITAS IP Rights, accounts receivable or deferring payments or accruals;
(n) incurred any material liability other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(no) had a judgment entered or settled any labor dispute withLitigation resulting in a loss, payment or other cost, after receipt of insurance payments, individually or in the aggregate, in excess of Twenty-Five Thousand Dollars ($25,000);
(p) amended Sellers' or Nextera's Formation Documents or altered through merger, liquidation, reorganization, restructuring or in any other fashion its respective corporate structure or ownership;
(q) made any modification, waiver, change, amendment, release, rescission or termination of, or charge of unfair labor practice byaccord and satisfaction with respect to, any member of the VERITAS Group (material contract, agreement, license or other instrument to which Sellers are a party, including all material customer/consulting agreements, other than routine individual grievances)any satisfaction by performance in accordance with the terms thereof in the ordinary course of business;
(r) entered into or amended in an adverse manner any agreement which had non-competition, any activity geographical restriction or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to similar covenants that would be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASmaterial; or
(os) any agreement by any member of the VERITAS Group agreed to take any of the foregoing actions described in the preceding clauses (a) through (n) (other than as permitted hereunder or any action which would reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS Acquiror SEC Documents Reports filed prior to the date of this Agreement or set forth in Section 3.12 of the Acquiror Disclosure Schedule and except for the transactions contemplated by this Agreement, since December 31, 2000 to the VERITAS Financial Statements Balance Sheet Date date of this Agreement, the Acquiror and the Acquiror Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 2000, there has not occurred:
been (a) any change in the financial condition, results of operations or event which could reasonably be expected to have business of the Acquiror and any of the Acquiror Subsidiaries having a Material Adverse Effect on VERITAS; providedthe Acquiror and the Acquiror Subsidiaries taken as a whole, however(b) any damage, that in no event will a change in destruction or loss (whether or not covered by insurance) with respect to any assets of the trading price Acquiror or any of VERITAS Common Stock be deemed the Acquiror Subsidiaries having a Material Adverse Effect on VERITAS;
(b) any amendments or changes in Acquiror and the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
Acquiror Subsidiaries taken as a whole, (c) any damagechange by the Acquiror in its accounting methods, destruction to principles or loss of VERITAS assets not covered by insurancepractices, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares revaluation by the Acquiror of any member of its assets in any material respect, (e) to the date of this Agreement, any entry by the Acquiror or any of the VERITAS Group (other than pursuant Acquiror Subsidiaries into any commitment or transactions material to arrangements the Acquiror and the Acquiror Subsidiaries taken as a whole, except in connection with employees or consultants)the Merger, or (f) except for regular quarterly cash dividends on Acquiror Common Stock with usual record and payment dates, to the date of this Agreement, any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Acquiror Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends its subsidiaries or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Acquiror Subsidiary.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to From December 31, 2002, until the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except B&W has conducted its business only in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(fb) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but there has not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;been:
(i) other than in the ordinary course of business, consistent with past practice, a B&W Material Adverse Effect;
(Aii) any incurrence, assumption or guarantee by B&W or any member of the VERITAS Group B&W Subsidiary of any debt of any person, other than any member of the VERITAS Group, indebtedness for borrowed money in an aggregate principal amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business10,000,000 or that would constitute an Assumed Liability;
(kA) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than except in the ordinary course of business consistent with past practicepractice (1) any granting by B&W or any B&W Subsidiary to any current or former director, officer, employee or consultant primarily employed or engaged in the business to be transferred to B&W Opco as a result of the Asset Contribution and Assumption of Liabilities (collectively "B&W Personnel") of any bonus opportunity or any increase in compensation or benefits or (2) any payment by B&W or any B&W Subsidiary to any B&W Personnel of any bonus, in each case except to the extent required under employment agreements in effect as of December 31, 2002, and in accordance with its terms as of such date, (B) any granting by B&W or any B&W Subsidiary to any B&W Personnel of severance or termination pay or the right to receive any severance or termination pay or increases therein, except to the extent required under any agreement in effect as of December 31, 2002, (C) any entry by B&W or any B&W Subsidiary into, or any amendment of, (1) any employment, deferred compensation, severance, termination, employee benefit, loan, indemnification, stock repurchase, consulting or similar agreement between B&W or any B&W Subsidiary, on the one hand, and any B&W Personnel, on the other hand, or (2) any agreement between B&W or any B&W Subsidiary, on the one hand, and any B&W 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 B&W of the nature contemplated by this Agreement (all such agreements under this clause (C) including any such agreement which is entered into on or after the date of this Agreement, collectively, "B&W Benefit Agreements"), (D) any amendment of any incentive award (including performance units, restricted stock, stock repurchase rights or other equity-based or equity-related awards) or any removal or modification of any restrictions in any such award or (E) any amendment to, or modification of, any plan, arrangement or material understanding providing B&W Personnel with the awards described in clause (D);
(miv) any transfer change in financial reporting or grant accounting methods, principles or practices by B&W or any B&W Subsidiary materially affecting the consolidated assets, liabilities or results of operations of B&W and the B&W Subsidiaries, except insofar as may have been required by a right under change in GAAP;
(v) any elections by B&W or any B&W Subsidiary with respect to Taxes of the VERITAS IP Rights, B&W Business (other than those transferred with respect to an Excluded Asset or granted Excluded Liability) or settlement or compromise by B&W or any B&W Subsidiary of any material Tax liability or refund of the B&W Business (other than with respect to an Excluded Asset or Excluded 44 Liability), except for elections, settlements or compromise that is not reasonably likely to have a B&W Material Adverse Effect; or
(vi) any sale, lease (as lessor), license or other disposition of, or the creation or existence of any Lien on, any properties or assets, except (A) in the ordinary course of business, business consistent with past practicepractice and (B) sales, except for any grant leases, licenses, dispositions of a right to source code or grant and the creation of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice byLiens with respect to, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Excluded Assets.
Appears in 1 contract
Sources: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Absence of Certain Changes or Events. Except as disclosed in since the ------------------------------------ VERITAS SEC Documents filed prior to Date of the Balance Sheet. Since the date of this Agreementthe Balance Sheet, since the VERITAS Financial Statements Balance Sheet Date there has not occurredexcept as described on Schedule 2.10 neither Seller nor any Affiliate nor any Stockholder has:
a. incurred any obligation or liability (a) any change fixed or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultantscontingent), except normal trade or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except business obligations incurred in the ordinary course of the business, consistent with past practice business and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation none of VERITAS Employeeswhich is materially adverse, and (iiexcept in connection with this Agreement and the transactions contemplated hereby except as set forth under Section 2.18(g) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, b. discharged or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of satisfied any Encumbrance or paid any obligation or liability (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance fixed or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractscontingent), other than in the ordinary course of business and consistent with past practice;
c. mortgaged, pledged or subjected to any Encumbrance any of its assets or properties (m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted mechanic’s, materialman’s and similar statutory liens arising in the ordinary course of businessbusiness and purchase money security interests arising as a matter of law between the date of delivery and payment);
d. transferred, leased or otherwise disposed of any of Seller’s assets or properties except for a fair consideration in the ordinary course of business and consistent with past practice or, except in the ordinary course of business and consistent with past practice, acquired any assets or properties;
e. cancelled or compromised any debt or claim, except for in the ordinary course of business and consistent with past practice;
f. waived or released any grant rights of a right to source code material value;
g. transferred or grant of granted any exclusive rights under any concessions, leases, licenses, agreements, patents, inventions, trademarks, trade names, service marks or copyrights or with respect to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterknow-how;
(n) h. made or granted any labor dispute wage or salary increase applicable to any group or classification of employees generally, entered into any employment contract with, or charge made any loan to, or entered into any material transaction of unfair labor practice byany other nature with, any member of officer or employee;
i. entered into any transaction, contract or commitment, except (i) contracts listed on Schedule 2.10 hereof and (ii) this Agreement and the VERITAS Group transactions contemplated hereby;
j. suffered any casualty loss or damage (other than routine individual grievances), whether or not such loss or damage shall have been covered by insurance) that affects in any activity or proceeding by a labor union or representative thereof material respect Seller’s ability to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASconduct business; or
(o) any agreement by any member of the VERITAS Group k. committed to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior Company Balance Sheet Date and through to the date of this Agreementhereof, since the VERITAS Financial Statements Balance Sheet Date Company and its Subsidiaries have conducted their respective businesses in the ordinary course consistent with past practice and there has not occurredbeen:
(a) any change change, circumstance, event, occurrence or event which could development that has had or would reasonably be expected to have a Company Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to Company Securities or Company Subsidiary Securities (except for any dividends or other distributions by any direct or indirect wholly-owned Subsidiary to the Company or a wholly-owned Subsidiary of cash the Company, and, in the case of Subsidiaries which are not wholly-owned Subsidiaries, for dividends or property arising from other distributions pursuant to Material Contracts in respect of such Subsidiaries entered into prior to the VERITAS Business date hereof, the amount of which the Company has received since March 31, 2006 which the Company has disclosed to Parent in Schedule 2.11(b) of the Company Disclosure Letter), or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities of the Company or any of its Subsidiaries;
(ec) except as set forth in Schedule 2.11(c) of the Company Disclosure Letter, any material (i) increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employeesits officers, directors or Employees (except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as for salary or wage increases that are required by applicable statute Collective Agreements or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course case of the businessofficers, consistent with past practice, directors or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than Employees that are increased in the ordinary course of business consistent with past practice;
), or (mii) establishment, adoption, or entry into of any transfer bonus, severance, termination, pension, or grant other employee benefit plan, agreement or arrangement made to, for or with any of a right under the VERITAS IP Rightsits directors, officers or Employees other than those transferred or granted reimbursements and advances of expenses in the ordinary course of business, business consistent with past practicepractice and immaterial arrangements for specific individuals;
(d) any material labour dispute, except for any grant individual grievances which individually, or in the aggregate, have not had, and are not reasonably expected to have, a Company Material Adverse Effect, or to the knowledge of a right to source code or grant of any exclusive rights to any VERITAS IP Rightsthe Company, each of which shall be except as set forth in Section 3.09(mSchedule 2.11(d) of the VERITAS Company Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding commenced by a labor labour union or representative thereof to organize any VERITAS Employees orEmployees;
(e) any material damage, destruction or loss with respect to VERITAS' Knowledgethe material property and assets owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance;
(f) except as disclosed in the Company Securities Reports, any campaign being conducted change in any method of accounting principles, method or practices, except for any such change required by reason of a concurrent change in or implemented to solicit authorization from VERITAS Employees comply with, GAAP or Applicable Law (as agreed to be represented by such labor unionthe Company’s independent auditor) and except for any changes in any accounting practices that are recommended by the Company’s independent auditor, where such disputeby the Company or any of its Subsidiaries;
(g) any Tax election, practicechange in method of Tax accounting or settlement of any claim for Taxes, activity, proceeding, other than claims that individually or c ampaign would have a Material Adverse Effect on VERITASin the aggregate are not material; or
(oh) any agreement by any member of the VERITAS Group agreement, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS WABCO SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there has December 31, 1998, (A) WABCO and its Subsidiaries have not occurred:
incurred any material liability or obligation (a) indirect, direct or contingent), or entered into any change material oral or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, howeverwritten agreement or other transaction, that in no event will a change is not in the trading price ordinary course of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments business or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which that would have a Material Adverse Effect on VERITAS;
(d) any redemptionWABCO, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance WABCO and its Subsidiaries have not sustained any loss or sale by any member of the VERITAS Group of any securities convertible into interference with their business or exchangeable for their respective debt securities; or (C) issuance or sale of options properties from fire, flood, windstorm, accident or other rights to acquire from the VERITAS Group, directly calamity (whether or indirectly, debt securities of any member of the VERITAS Group, not covered by insurance) that has had or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign that would have a Material Adverse Effect on VERITAS; or
WABCO, (oC) there has been no change in the capital stock of WABCO and no dividend or distribution of any kind declared, paid or made by WABCO on any class of its stock, except for the regular quarterly dividend of not more than $.01 per share of WABCO Common Stock, (D) there has not been (y) any granting by WABCO or any of its Subsidiaries to any executive officer or material modification of any severance or termination benefits or (z) any entry by WABCO or any of its Subsidiaries into or material modification of any employment, severance or termination agreement by with any member such executive officer, (E) WABCO and its Subsidiaries have not prepared or filed any Tax Return (as defined in Section 2.9) inconsistent in any material respect with past practice or, on any such Tax Return, taken any position, made any election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, and (F) there has been no other event causing a Material Adverse Effect on WABCO, nor any development that would, individually or in the aggregate, have a Material Adverse Effect on WABCO. Set forth in Section 2.7 of the VERITAS Group WABCO Disclosure Letter is a description of any material changes, between December 31, 1998 and the date of this Agreement (excluding any intervening fluctuations between such dates), to take any the amount and terms of the actions indebtedness of WABCO and its Subsidiaries as described in WABCO's Annual Report on Form 10-K for the preceding clauses (a) through (n) year ended December 31, 1998, as filed with the SEC (other than the transactions contemplated by this Agreement any changes in, or the Ancillary Agreementsincurrence of, indebtedness of WABCO or any of its Subsidiaries with a principal amount not in excess of $1,000,000).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Motivepower Industries Inc)
Absence of Certain Changes or Events. Except as disclosed in ------------------------------------ the ------------------------------------ VERITAS Seller SEC Documents Reports filed prior to the date of this Agreement or set forth in Section 2.8 of the Seller Disclosure Schedule and except for the transactions contemplated by this Agreement, since September 30, 1996 to the VERITAS Financial Statements Balance Sheet Date date of this Agreement, the Seller and the Seller Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since September 30, 1996, there has not occurred:
been (ai) any change in the financial condition, results of operations or event which could reasonably be expected to have business of the Seller and any of the Seller Subsidiaries having a Material Adverse Effect on VERITAS; providedthe Seller or the Seller Subsidiaries, howevertaken as a whole, that in no event will a change in (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of the trading price Seller or any of VERITAS Common Stock be deemed the Seller Subsidiaries having a Material Adverse Effect on VERITAS;
Seller and the Seller Subsidiaries, taken as a whole, (biii) any amendments change by the Seller in its accounting methods, principles or changes in practices, (iv) any revaluation by the Certificate of Incorporation or Bylaws Seller of any member of the VERITAS Group;
its assets in any material respect, (cv) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than except for repurchases pursuant to arrangements the Seller's Common Stock Repurchase Program or for regular quarterly cash dividends on Seller Common Stock with employees or consultants)usual record and payment dates, or to the date of this Agreement, any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Seller Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends its securities or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS GroupSeller Subsidiary, or any securities convertible into or exchangeable for any such debt securities;
(jvi) any creation strike, work stoppage, slow-down or assumption other labor disturbance suffered by any member of the VERITAS Group of any Encumbrance Seller or the Seller Subsidiaries, (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kvii) any making by any member of the VERITAS Group of any loancollective bargaining agreement, advance contract or capital contribution to other agreement or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent understanding with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof organization to organize which the Seller or the Seller Subsidiaries have been a party, (viii) any VERITAS Employees orunion organizing activities relating to employees of the Seller or the Seller Subsidiaries, or (ix) any increase in the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to VERITAS' Knowledgeany executive officer, employee or director, any campaign being conducted grant of severance or termination pay, any contract entered into to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingmake or grant any severance or termination pay, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member bonus paid other than year-end bonuses for fiscal 1997 as listed in Section 2.8 of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Seller Disclosure Schedule.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date the Company has conducted its business in the ordinary course of business (consistent with past practice) and there has not occurredbeen any:
(a) any change Event that, individually or event which could in the aggregate, has had or would reasonably be expected to have have, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments material change in its methods of accounting or changes accounting practices (including with respect to revenue recognition), except in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupso far as was required by a change in GAAP;
(c) any damage, destruction amendment or modification to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASthe Organizational Documents;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend material bonuses or severance, or material increases in salaries or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable benefits, by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect Company to any of the VERITAS Employeesits directors, officers, current or former employees or current or former independent contractors, other than (i) in the ordinary course of the businessincreases, consistent with past practice, bonus payments or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements commission payments made in the ordinary course of business;
(ke) sale, acquisition, assignment, transfer, conveyance or abandonment of any making Company Intellectual Property owned by the Company or any member other asset or properties of the VERITAS Group of any loan, advance or capital contribution to or investment in any person Company (other than inventory, product or obsolete assets, the grant of non-exclusive licenses of Company Intellectual Property to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made customers in the ordinary course of business (consistent with past practice) and sale of products to customers in the business, and ordinary course of business (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000consistent with past practice));
(lf) any amendment of, relinquishment, termination damage to or non- renewal by VERITAS destruction or loss of any material asset or property of the VERITAS ContractsCompany, whether or not covered by insurance;
(g) incurrence, creation, guarantee or assumption of any Indebtedness;
(h) dividend, distribution, sale, redemption, repurchase, recapitalization, reclassification, issuance, split, combination, subdivision or other similar transaction involving the Company Shares or securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, the Company Shares;
(i) amendment or termination of any existing Employee Plan (other than an amendment required by Law), or adoption of any new Employee Plan, other than in the ordinary course of business;
(j) capital expenditures or commitments therefor, other than in the ordinary course of business (consistent with past practice);
(k) adoption of a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or merger or consolidation with any other Person or other acquisition of any business or substantial assets of any Person;
(l) failure to pay in a timely manner any Taxes as they became due and payable;
(m) any transfer theft, damage, destruction or grant casualty loss, or Claim therefor, in excess of a right under the VERITAS IP Rights, other than those transferred or granted $100,000 in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights aggregate to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure LetterCompany’s assets, whether or not covered by insurance;
(n) making of, alteration of, modification of, change of, termination of or revocation of any labor dispute withelection relating to Taxes, any annual accounting period or any method of accounting for Tax purposes, agreement to any audit assessment by any Tax authority, entry into any closing agreement, settlement of any Tax claim or assessment, surrendering of any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or charge filing of unfair labor practice byany amended Tax Return, any member which, in each case, would materially affect the Tax position of the VERITAS Group (other than routine individual grievances), Company or materially decrease any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASTax attribute of the Company after Closing; orand
(o) any agreement by any member of the VERITAS Group authorization or commitment to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Sources: Merger Agreement (Squarespace, Inc.)
Absence of Certain Changes or Events. Except as provided in this Agreement or as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSchedule 4.8, since the VERITAS Financial Statements Base Balance Sheet Date Date, there has not occurredbeen any:
(a) any change or event which could reasonably be expected actual or, to have a Material Adverse Effect on VERITAS; providedthe knowledge of Seller, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASthreatened material adverse change;
(b) any amendments change in accounting methods, principles or changes in practices of Seller affecting the Certificate of Incorporation Assets, its Liabilities or Bylaws of any member of the VERITAS GroupBusiness;
(c) revaluation by Seller or any damageSubsidiary of Seller of any of the Assets, destruction to including without limitation writing down the value of inventory or loss writing off of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASnotes or accounts receivable;
(d) any redemptiondamage, repurchase destruction or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution loss (whether in cash, stock or propertynot covered by insurance) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends which has had or other distributions of cash or property arising from the VERITAS Business will have a material adverse effect;
(e) cancellation of any indebtedness or waiver or release of any right or claim of Seller or any Subsidiary of Seller relating to its activities or properties which had or will have a material adverse effect;
(f) declaration, setting aside, or payment of dividends or distributions by Seller or any Subsidiary of Seller in respect of the partnership interests of Seller or any redemption, purchase or other acquisition of any of the securities of Seller or any Subsidiary of Seller;
(g) increase in or modification the rate of the compensation or benefits payable by VERITAS or to become payable to any director, officer or other employee of Seller or any Subsidiary of Seller or any consultant earning in excess of $100,000 per year, Representative or agent of Seller or any Subsidiary of Seller, including without limitation the VERITAS Employeesmaking of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, or the addition to, modification of, or contribution to any Employee Program, arrangement, or practice described in the Disclosure Schedule (except for normal increases, payments, grants and accruals in the ordinary course of the business, business consistent with past practice practices and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any that in the aggregate have not resulted in material increase in benefits or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation compensation expense of the transactions contemplated hereinSeller and its Subsidiaries, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of taken as a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practicewhole);
(h) any alteration adverse change in any term employee relations which has or is reasonably likely to have a material adverse effect on the productivity, the financial condition, results of any outstanding capital stock operations or rights to acquire capital stock Business of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting Seller or any change in Subsidiary of Seller or the terms relationships between the employees of Seller or any outstanding stock optionsSubsidiary of Seller and the management of Seller or any Subsidiary of Seller;
(i) (x) amendment, cancellation or termination of any Contract, commitment, agreement, Lease, transaction or Permit relating to the Assets or the Business or (y), except for this Agreement and the other than agreements entered into in connection herewith, entry into any Contract, Lease, transaction or Permit which is not in the ordinary course of business, including without limitation any employment or consulting agreements, except in the cases of the forgoing clauses (x) and (y), the amendment, cancellation or termination or the entering into, of Contracts or commitments for the provision of consulting services in the ordinary course of business consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiespractices;
(j) mortgage, pledge or other encumbrance of any creation Assets, except purchase money mortgages arising in the ordinary course of business and Permitted Liens;
(k) sale, assignment or assumption by transfer of any member of the VERITAS Group Assets, except to the extent Assets are sold or disposed of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) incurrence of indebtedness by Seller or any amendment ofSubsidiary of Seller for borrowed money or commitment to borrow money entered into by Seller or any Subsidiary of Seller, relinquishmentor loans made or agreed to be made by Seller or any Subsidiary of Seller, termination or non- renewal indebtedness guaranteed by VERITAS Seller or any Subsidiary of any of the VERITAS ContractsSeller, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted except for employee advances in the ordinary course of business, consistent with past practiceendorsements for collection or deposit in the ordinary course of business and borrowings under Seller's existing credit facilities in the ordinary course of business;
(m) except as provided in this Agreement or the other agreements contemplated hereby or as described in the Disclosure Schedules, incurrence by Seller or any of its Subsidiaries of Liabilities, except for Liabilities incurred in the ordinary course of business, or increase or change in any grant assumptions underlying or methods of a right to source code calculating, any doubtful account contingency or grant other reserves of Seller or any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterits Subsidiaries;
(n) payment, discharge or satisfaction of any labor dispute with, Liabilities of Seller or charge any Subsidiary of unfair labor practice by, any member of the VERITAS Group (Seller other than routine individual grievances)the payment, discharge or satisfaction in the ordinary course of 26 business of Liabilities set forth or reserved for on the Base Balance Sheet or incurred in the ordinary course of business;
(o) capital expenditure by Seller or any activity Subsidiary of Seller in excess of $25,000 individually or proceeding $50,000 in the aggregate, the execution of any Lease by a labor union Seller or representative thereof any Subsidiary of Seller or the incurring of any obligation by Seller or any Subsidiary of Seller to organize make any VERITAS Employees orcapital expenditures or execute any Lease;
(p) failure to pay or satisfy when due any Liability of Seller or any Subsidiary of Seller, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, except where such dispute, practice, activity, proceeding, or c ampaign the failure would not have a Material Adverse Effect material adverse effect;
(q) failure of Seller or any Subsidiary of Seller to use commercially reasonable efforts to carry on VERITASdiligently the Business in the ordinary course;
(r) disposition or lapsing of any Proprietary Rights or any disposition or disclosure to any person of any Proprietary Rights of Seller or any Subsidiary of Seller not theretofore a matter of public knowledge, other than as would not have a material adverse effect; or
(os) any agreement by Seller, any member Subsidiary of Seller, General Partner, Limited Partner, or, to the VERITAS Group knowledge of Seller, any Shareholder to take do any of the actions things described in the preceding clauses (a) through (nr) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Except to the extent arising out of the transactions expressly contemplated by this Agreement (including the Restructuring) or as disclosed set forth in Schedule 3.8, since December 31, 1997, the Packaging Business has been conducted in all material respects in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date ordinary course consistent with past practice and there has not occurredoccurred any event, change or development which has had, or which would reason- ably be expected to have, individually or in the aggregate, a Material Adverse Effect or which would, individually or in the aggregate, reasonably be expected to prevent or materially interfere with or delay the consummation of the purchase of the Sold Shares contemplated hereby. Without limiting the generality of the forego- ing, since December 31, 1997, except as otherwise disclosed in Schedule 3.8 or except to the extent expressly contemplated by this Agreement (including the Restructuring), neither any Selling Company nor any Packaging Company with respect to the Packaging Business has:
(ai) made any material change in any financial reporting or event accounting policy or accounting practice by any Packaging Company, other than such changes required by law or GAAP;
(ii) sold, transferred, leased or otherwise disposed of, to any third party, any properties or assets material to the operation of the Packaging Business other than in the ordinary course of business consistent with past prac- ▇▇▇▇;
(iii) other than in the ordinary course consistent with past practice, (A) entered into any employment, consult- ing or severance agreements with any Employee or any director or officer of the Packaging Companies or materially changed the terms thereof, (B) materially increased benefits payable under existing severance or termination pay policies or em- ployment agreements with respect to senior management of the Packaging Companies or (C) made any increase in, or commitment or plan to increase, the wages, salaries, compensation, pen- sion or other benefits or payments to any directors, officers or employees of the Packaging Companies (except for increases in the ordinary course of business consistent with past prac- ▇▇▇▇ or as required under Plans or Material Contracts);
(iv) suffered any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the Packaging Business resulting in losses in excess of A$3 million;
(v) settled or agreed to settle any Action, which could settlements, individually or in the aggregate, would reason- ably be expected to have a Material Adverse Effect;
(vi) with respect to the Packaging Business termi- nated, discontinued, closed or disposed of any material facil- ity or business operation or otherwise materially changed the general character or conduct of its business;
(vii) declared, set aside or paid any dividend or other distribution in respect of any capital stock of any Packaging Company, other than any dividend or other distribu- tion (A) pursuant to the Restructuring, (B) to the extent payable in cash or by credit to an intercompany account or (C) payable to a Sold Company or another Packaging Company direct- ly or indirectly wholly-owned by the Sold Companies;
(viii) redeemed, purchased or otherwise acquired any shares of any Packaging Company, other than pursuant to the Restructuring;
(ix) waived or released any claims or rights (other than claims or rights in the nature of indebtedness) which waivers or releases would, individually or in the aggre- gate, reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEf- fect;
(bx) incurred any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group material Lien (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted EncumbrancesPermit- ▇▇▇ Liens) on any VERITAS Asset in excess its assets outside of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kxi) made any making by binding commitments for capital expenditures to be funded after the Closing Date in excess of U.S.$5,000,000 individually;
(xii) merged or consolidated with, or acquired securities or any member of the VERITAS Group of equity interest in, any loan, advance or capital contribution to or investment in any person Person other than a Packaging Company;
(xiii) made any material loan or advance to refinance any Person, other than a liability reflected in the VERITAS Financial Statements loan or advance from a Packaging Company to another Packaging Company and other than (i) loanstrade receivables, Intergroup Receivables and loans and advances or capital contributions made to employees in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000business consistent with past practice;
(lxiv) failed to pay any amendment of, relinquishment, termination or non- renewal by VERITAS creditor any amount owed to such creditor when due (after the expiration of any of the VERITAS Contractsappli- cable grace periods), except if any such amount is being disputed in good faith and other than in the ordinary course of business consistent with past practice;
(mxv) written down the value of any transfer inventory or grant any other asset of a right under the VERITAS IP Rights, other than those transferred or granted Packaging Business except in the ordinary ordi- nary course of business, business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(nxvi) issued and sold any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group new debt securities (other than routine individual grievancescommercial paper) or entered into any new credit facility (other than roll-overs under existing facilities), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(oxvii) entered into an agreement with, or made a binding commitment to, any agreement by any member of the VERITAS Group Person to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Sources: Share Disposition Agreement (Owens Illinois Inc /De/)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS Amdocs SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Amdocs Balance Sheet Date Date, Amdocs and the Amdocs Subsidiaries have conducted their respective businesses only in the ordinary and usual course of such businesses and there has not occurred:
(a) any change in the condition (financial or event which otherwise), properties, assets, liabilities, businesses, operations, results of operations or prospects of Amdocs and the Amdocs Subsidiaries, taken as a whole that could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASAmdocs;
(b) any amendments or changes in the Certificate certificate of Incorporation incorporation or Bylaws bylaws of any member of the VERITAS GroupAmdocs;
(c) any damage, destruction to or loss of VERITAS assets not loss, whether covered by insuranceinsurance or not, which would that could reasonably be expected to have a Material Adverse Effect on VERITASAmdocs;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group Amdocs Ordinary Shares by Amdocs (other than the repurchase of unvested shares at cost pursuant to arrangements with terminated employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS EmployeesAmdocs Ordinary Shares;
(f) other than as required any change by applicable statute Amdocs in its accounting methods, principles or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowpractices;
(g) any acquisition or sale of a material amount of the VERITAS Assets, property or any acquisition by any member assets of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS ContractsAmdocs, other than in the ordinary course of business consistent with past practice;
(mA) other than in the ordinary course of business consistent with past practice or other nonmaterial amounts, any incurrence, assumption or guarantee by Amdocs of any debt for borrowed money; (B) any issuance or sale of any securities convertible into or exchangeable for debt securities of Amdocs; or (C) any issuance or sale of options or other rights to acquire from Amdocs, directly or indirectly, debt securities of Amdocs or any securities convertible into or exchangeable for any such debt securities;
(i) other than in the ordinary course of business consistent with past practice or other nonmaterial amounts, any creation or assumption by Amdocs of any mortgage, pledge, security interest or lien or other encumbrance on any asset;
(j) any transfer or grant of a material right under the VERITAS Amdocs IP RightsRights (as defined in Section 3.13 below), other than those transferred or granted in the ordinary course of business, business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterpractices;
(nk) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, employees of Amdocs or any campaign being conducted to solicit authorization from VERITAS Employees employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(ol) any agreement or arrangement made by any member of the VERITAS Group Amdocs to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Agreement materially untrue or incorrect as of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)date when made unless otherwise disclosed.
Appears in 1 contract
Sources: Combination Agreement (Amdocs LTD)
Absence of Certain Changes or Events. Except as disclosed set forth in the ------------------------------------ VERITAS SEC Documents filed prior to the date appropriate subsection of this AgreementSCHEDULE 3.5, since the VERITAS Financial Statements Balance Sheet Date Date, there has not occurredbeen:
(a) any event, occurrence, fact, condition, change or event which could reasonably be expected to have development, including the announcement of the transactions contemplated by this Agreement, which, individually or in the aggregate, has had a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments or changes change in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupmethods of accounting or accounting practice of Showco; or any increase or any change in any assumptions underlying, or methods of calculating, any bad debt, contingency or other reserves relating to the Assets or the Business;
(c) any material damage, destruction to or other casualty loss of VERITAS assets (whether or not covered by insurance, which would have a Material Adverse Effect on VERITAS) suffered by Showco;
(d) any redemption, repurchase bonus paid or other acquisition any increase in the rate of shares of any member compensation or of the VERITAS Group (other than pursuant to arrangements with employees or consultants)benefits payable, or to become payable, to any declaration, setting aside or payment of any dividend or other distribution (whether Employee over the levels in cash, stock or property) with respect to effect on the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Balance Sheet Date;
(e) any material increase in sale, lease, transfer or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification disposition of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS EmployeesAsset, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than inventory in the ordinary course of business consistent with past practice;
(mf) any transfer material labor dispute relating to the Business;
(g) any payment, discharge or grant satisfaction of a right under any claim, liability or obligation (whether accrued, fixed, contingent or otherwise) relating to the VERITAS IP Rights, Assets or the Business other than those transferred the payment, discharge or granted satisfaction in the ordinary course of businessbusiness consistent with past practice of liabilities and obligations reflected or reserved against in the Balance Sheet or incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date;
(h) any grant or imposition of any Liens except for Permitted Liens;
(i) any write-off as uncollectible of any note or account receivable of Showco, except for immaterial amounts in the ordinary course of business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(nj) any labor dispute withcancellation of debts or waiver of any claim or right of substantial value of Showco;
(k) any sale, transfer, license or other disposition of, or charge compromise or lapse of unfair labor practice byany rights to the use of, any member of the VERITAS Group Intellectual Property;
(l) other than routine individual grievances)pursuant to the Console Agreement, any activity capital expenditure or proceeding commitment for any capital expenditure by a labor union Vari-Lite or representative thereof Showco relating to organize any VERITAS Employees orthe Business, which individually exceeds $50,000 or in the aggregate exceeds $200,000 for additions to VERITAS' Knowledgeproperty, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor unionplant, where such dispute, practice, activity, proceeding, equipment or c ampaign would have a Material Adverse Effect on VERITASintangible capital assets; or
(om) any agreement by any member of the VERITAS Group agreement, whether in writing or otherwise, direct or indirect, formal or informal, to take any of the actions action described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Section 3.5.
Appears in 1 contract
Sources: Asset Transfer Agreement (Vari Lite International Inc)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSince December 31, since the VERITAS Financial Statements Balance Sheet Date there 2016, BOJ has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except conducted its business only in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractshas not, other than in the ordinary course of business and consistent with past practicepractices and safe and sound banking practices or as disclosed in Section 5.12 of the Schedules:
A. Incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except deposits taken and federal funds purchased and current liabilities for trade or business obligations, none of which, individually or in the aggregate, result in a Material Adverse Change;
B. Discharged or satisfied any Lien or paid any obligation or liability, whether absolute or contingent, due or to become due;
C. Declared or made any payment of dividends or other distribution to its shareholders, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its shares of capital stock or other securities;
D. Issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereto;
E. Acquired any capital stock or other equity securities or acquired any equity or ownership interest in any Entity (mexcept (i) through settlement of indebtedness, foreclosure, or the exercise of creditors’ remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any transfer liability from the business, operations or grant liabilities of such Person);
F. Mortgaged, pledged or subjected to Lien any of its property, business or assets, tangible or intangible except (i) statutory liens not yet delinquent, (ii) consensual landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (iv) pledges of assets to secure public funds deposits, and (v) those assets and properties disposed of for fair value since the dates of the most recent BOJ Financial Statement or Highlands Bank Call Report;
G. Sold, transferred, leased to others or otherwise disposed of any of its assets (except for assets disposed of for fair value) or canceled or compromised any debt or claim, or waived or released any right or claim (except in conjunction with the settlement of litigation described in Section 5.12L) of material value;
H. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not constituting, or may reasonably be anticipated to result in, a right under Material Adverse Change covered by insurance), which, in any case or in the VERITAS IP Rightsaggregate, other than those may reasonably constitute a Material Adverse Change;
I. Disposed of, permitted to lapse, transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign license or BOJ Proprietary Right (as defined in Section 5.17) or modified any existing rights with respect thereto;
J. Made any change in the ordinary course rate of businesscompensation, consistent with past practicecommission, except bonus, vesting or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to or for any grant of a right to source code or grant the benefit of any exclusive rights to of its shareholders, directors, officers, employees or agents, or entered into any VERITAS IP Rightsemployment or consulting contract or other agreement with any director, each officer or employee or adopted, amended in any material respect or terminated any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by it for the benefit of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterits directors, employees or former employees;
(n) K. Except for improvements or betterments relating to its properties, made any labor dispute withcapital expenditures or capital additions or betterments in excess of an aggregate of $50,000;
L. Instituted, had instituted against it, settled or charge of unfair labor practice byagreed to settle any litigation, action or proceeding before any member of the VERITAS Group (court or governmental body relating to its property other than routine individual grievances), any activity collection suits instituted by it to collect amounts owed or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; orsuits in which the amount in controversy is less than $50,000;
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than M. Except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any transaction, or entered into, modified or amended any contract or commitment;
N. Entered into or given any promise, assurance or guarantee of the Ancillary Agreements)payment, discharge or fulfillment of any undertaking or promise made by any Person;
O. Sold, or knowingly disposed of, or otherwise divested itself of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
P. Made any, or acquiesced with any, change in any accounting methods, principles or material practices except as required by GAAP or RAP; or
Q. Entered into any agreement or made any commitment whether in writing or otherwise to take any of the types of action described in subsections A. through P. above.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Investar Holding Corp)
Absence of Certain Changes or Events. Except as disclosed for transactions specifically contemplated in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements date of the TRMS Balance Sheet Date there has not occurredSheet, neither TRMS, nor any of its officers, directors or Stockholders in their representative capacities on behalf of TRMS, have:
(a) taken any change action or event which could reasonably be expected entered into or agreed to have a Material Adverse Effect on VERITAS; providedenter into any transaction, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments agreement or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (commitment other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kb) forgiven or canceled any making by indebtedness or waived any member claims or rights of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000material value;
(lc) granted any amendment ofincrease in the compensation of directors, relinquishmentofficers, termination employees or non- renewal consultants;
(d) suffered any change having a TRMS Material Adverse Effect;
(e) borrowed or agreed to borrow any funds, incurred or become subject to, whether directly or by VERITAS way of assumption or guarantee or otherwise, any obligations or liabilities in excess of $5,000 individually or $10,000 in the VERITAS Contractsaggregate, other than except liabilities and obligations that are incurred in the ordinary course of business and consistent with past practice, or increased, or experienced any change in any assumptions underlying or methods of calculating, any bad debt, contingency or other reserves;
(mf) paid, discharged or satisfied any transfer material claims, liabilities or grant obligations other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of claims, of liabilities and obligations reflected or reserved against in the TRMS Balance Sheet or incurred in the ordinary course of business and consistent with past practice since the date of the TRMS Balance Sheet, or prepaid any obligation having a right under fixed maturity of more than 90 days from the VERITAS IP Rightsdate such obligation was issued or incurred;
(g) knowingly permitted or allowed any of its property or assets to be subjected to any Encumbrance, other than those Permitted Encumbrances;
(h) purchased or sold, transferred or granted otherwise disposed of any of its material properties or assets;
(i) disposed of, other than through licenses in the ordinary course of business, consistent with past practiceor permitted to lapse, except for any grant of a right rights to source code or grant the use of any exclusive rights Intellectual Property, or disposed of or disclosed to any VERITAS IP RightsPerson without obtaining an appropriate confidentiality agreement from any such Person any trade secret, each formula, process or know-how not theretofore a matter of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterpublic knowledge;
(nj) made any labor dispute withsingle capital expenditure or commitment in excess of $10,000 for additions to property, plant, equipment or charge intangible capital assets or otherwise or made aggregate capital expenditures in excess of unfair labor practice by$10,000 for additions to property, plant, equipment or intangible capital assets or otherwise;
(k) made any member of the VERITAS Group (other than routine individual grievances), any activity change in accounting methods or proceeding by a labor union practices or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASinternal control procedures; or
(ol) paid, loaned or advanced any agreement by amount to, or sold, transferred or leased any member of the VERITAS Group properties or assets to take any of the actions described in Stockholders or any of TRMS's officers, directors or employees, or any Affiliate of any Stockholder or of TRMS's officers, directors or employees, except for (i) compensation paid to officers and employees at rates not exceeding the preceding clauses rates of compensation paid during the fiscal year last ended, (aii) through advances for travel and other business-related expenses, and (niii) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Pre-Closing Distribution.
Appears in 1 contract
Sources: Merger Agreement (Lion Inc/Wa)
Absence of Certain Changes or Events. Except as disclosed From the date of the most recent Parent balance sheet contained in the ------------------------------------ VERITAS Parent SEC Documents filed prior to the to the date hereof (the “Parent Balance Sheet”) to the date of this Agreement, since (i) each of the VERITAS Financial Statements Parent Entities has conducted its respective operations only in the ordinary course consistent with past practice, (ii) Parent has not suffered a material adverse change and (iii) no Parent 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). From the date of the Parent Balance Sheet Date there has not occurredto the date of this Agreement the Parent Entities have not:
(ai) (A) other than dividends and distributions by a direct or indirect wholly owned subsidiary of Parent to Parent or another wholly owned subsidiary of Parent, declared, set aside or paid any change dividends on, or event which could reasonably be expected made any other distributions in respect of, any of its capital stock other than regular quarterly cash dividends with respect to Parent Common Stock not in excess of $0.23 per share of Parent Common Stock in accordance with Parent’s past dividend practice or (B) split, combined or reclassified any of its capital stock or (C) except pursuant to agreements entered into with respect to the Parent Stock Plans, purchased, redeemed or otherwise acquired any shares of capital stock of Parent or any of the Parent Subsidiaries or any other securities thereof or any rights, warrants or 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 or 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 subsidiary of Parent to Parent or any Parent Subsidiary or the issuance of shares of Parent Common Stock (A) upon the exercise of Parent Stock Options under the Parent stock plans or in connection with other awards under Parent stock plans, in each case, in accordance with their terms or (B) the issuance of Parent Rights under the Parent Rights Agreement in connection with the issuance of Parent Common Stock permitted pursuant to this Agreement;
(iii) (A) amended its Amended Articles of Incorporation or Code of Regulations (or other comparable organizational documents) or (B) merged or consolidated with any person;
(iv) taken any action that would jeopardize qualification of the Merger as a reorganization within the meaning of Section 368(a) of the Code;
(v) purchased any material business or purchased any stock of or other equity interest in any material corporation or other entity;
(vi) taken or failed to have taken any action that would constitute a Material Adverse Effect violation of applicable Law, except for such violations as did not have or result in a material adverse effect on VERITASParent or changed the accounting principles used by it unless required by GAAP (or, if applicable with respect to foreign subsidiaries, the relevant foreign generally accepted accounting principles);
(vii) entered into any new material line of business; or
(viii) authorized, or committed or agreed to take, any of the foregoing actions; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be limitations set forth in the second sentence of Section 3.09(m3.2(g) do not apply to any transaction to which the only parties are Parent and wholly owned subsidiaries of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Parent.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed set forth on Disclosure Schedule 3.24 attached hereto, since December 31, 2016, (unless a more recent date is specified below), the Acquired Companies have not entered into any transaction that is not in the ------------------------------------ VERITAS SEC Documents filed prior to usual and Ordinary Course of Business consistent with past practice, and, without limiting the date generality of this Agreementthe foregoing, since the VERITAS Financial Statements Balance Sheet Date there has not occurredneither Acquired Company has:
(a) suffered any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASits Business;
(b) suffered any amendments theft, damage, destruction or changes casualty loss to its assets in excess of Twenty-Five Thousand Dollars ($25,000) in the Certificate of Incorporation aggregate, whether or Bylaws of any member of the VERITAS Groupnot covered by insurance;
(c) since December 31, 2016, incurred, assumed or suffered to exist any damageIndebtedness for borrowed money (other than the Indebtedness to be paid at Closing), destruction to or loss other than as set forth on the face of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASthe Latest Balance Sheet;
(d) since December 31, 2016 and except as contemplated by this Agreement, discharged or satisfied any redemption, repurchase Lien or encumbrance or paid any obligation or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employeesliability, other than (i) current liabilities set forth on the face of the Latest Balance Sheet paid or discharged in the ordinary course Ordinary Course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, Business consistent with past practice;
(e) mortgaged, pledged or subjected to Lien, any of its properties or assets;
(f) sold or purchased, assigned or transferred any of its intangible assets or canceled any debts or claims except in the Ordinary Course of Business;
(g) made any material amendment to or termination of any Contract;
(h) made any alteration material changes in any term compensation of any outstanding capital stock its senior officers or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or directors;
(i) made any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Groupof, or material increase or decrease in, any securities convertible into or exchangeable for any such debt securitiesEmployee Benefit Plan;
(j) amended or taken any creation action to amend its Charter or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of businessbylaws;
(k) any making by any member of issued or changed the VERITAS Group authorized or issued securities of any loanAcquired Company, advance sold any equity in either Acquired Company or capital contribution granted any option to purchase or investment in subscribe for any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000equity;
(l) since December 31, 2016 and except as contemplated by this Agreement, declared or made any amendment ofdividend, relinquishmentpayment or other distribution with respect to the SNI Holdco Shares or any other security in Acquired Company, termination purchased or non- renewal by VERITAS of entered into any agreement to redeem any portion of the VERITAS Contracts, shares or other than securities in the ordinary course Acquired Company, or actually redeemed or repurchased any capital stock or other security of business consistent with past practicethe either Acquired Company;
(m) sold, leased, assigned, encumbered by Lien or transferred any transfer of its properties or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterassets;
(n) except as contemplated by this Agreement, directly or indirectly engaged in any labor dispute withtransaction, arrangement or contract with any Affiliate or Insider;
(o) made any capital investments in, loan to or acquired (by merger, consolidation or acquisition of stock or assets) any interest in any corporation, limited liability company, partnership or other business organization or division thereof or any equity interest therein;
(p) authorized or made any new capital expenditure or expenditures that in the aggregate are in excess of the applicable Acquired Companies’ budget therefor;
(q) settled any litigation, claim or action for an amount in excess of Twenty-Five Thousand Dollars ($25,000) or involving equitable or injunctive relief;
(r) changed its fiscal year or changed its methods, policies or practices of accounting, except as required by changes in GAAP as concurred in by the Acquired Companies’ independent accountants;
(s) made, accrued or entered into or amended any agreement or otherwise became liable for any severance, bonus, profit sharing incentive payment, retirement, pension, loan or benefit to any director, manager, officer, employee or consultant of either Acquired Company, except for accruals under existing Employee Benefit Plans in the Ordinary Course of Business, if any;
(t) made or revoked any material election under the Code or the Tax statutes of any state or other jurisdiction or consented to any extension or waiver of the limitation period applicable to any claim or assessment relating to Taxes;
(u) entered into or amended any employment arrangement or otherwise hired any management personnel reasonably expected to earn more than One Hundred Thousand Dollars ($100,000) per year;
(v) released or waived of any claim or right of either Acquired Company with a value in excess of Twenty-Five Thousand Dollars $25,000;
(w) agreed to, nor made or suffered any modification, termination, or charge expirations of, nor received notice of unfair labor practice bytermination of, any member of the VERITAS Group Contracts listed or described in Section 3.18;
(other than routine individual grievancesx) suffered, permitted, caused (by action or omission), taken, made or entered or agreed to any activity or proceeding by a labor union or representative thereof other material occurrence, event, action, failure to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceedingact, or c ampaign would have a Material Adverse Effect on VERITASagreement or transaction, that is outside the Ordinary Course of Business of either Acquired Company; or
(oy) any agreement by any member of the VERITAS Group committed or agreed to take do any of the actions described foregoing in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)future.
Appears in 1 contract
Sources: Merger Agreement (GEE Group Inc.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSince December 31, since the VERITAS Financial Statements Balance Sheet Date there 2017, RSBI has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except conducted its business only in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractshas not, other than in the ordinary course of business and consistent with past practicepractices and safe and sound banking practices or as disclosed in Section 5.12 of the Schedules:
A. Incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except deposits taken and federal funds purchased and current liabilities for trade or business obligations, none of which, individually or in the aggregate, result in a Material Adverse Change;
B. Discharged or satisfied any Lien or paid any obligation or liability, whether absolute or contingent, due or to become due;
C. Declared or made any payment of dividends or other distribution to its shareholders, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its shares of capital stock or other securities;
D. Issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereto;
E. Acquired any capital stock or other equity securities or acquired any equity or ownership interest in any Entity (mexcept (i) through settlement of indebtedness, foreclosure, or the exercise of creditors’ remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any transfer liability from the business, operations or grant liabilities of such Person);
F. Mortgaged, pledged or subjected to Lien any of its property, business or assets, tangible or intangible except (i) statutory liens not yet delinquent, (ii) consensual landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (iv) pledges of assets to secure public funds deposits, and (v) those assets and properties disposed of for fair value since the dates of the most recent RSBI Financial Statement or Richland State Bank Call Report;
G. Sold, transferred, leased to others or otherwise disposed of any of its assets (except for assets disposed of for fair value) or canceled or compromised any debt or claim, or waived or released any right or claim (except in conjunction with the settlement of litigation described in Section 5.12L) of material value;
H. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not constituting, or may reasonably be anticipated to result in, a right under Material Adverse Change covered by insurance), which, in any case or in the VERITAS IP Rightsaggregate, other than those may reasonably constitute a Material Adverse Change;
I. Disposed of, permitted to lapse, transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign license or RSBI Proprietary Right (as defined in Section 5.17) or modified any existing rights with respect thereto;
J. Made any change in the ordinary course rate of businesscompensation, consistent with past practicecommission, except bonus, vesting or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to or for any grant of a right to source code or grant the benefit of any exclusive rights to of its shareholders, directors, officers, employees or agents, or entered into any VERITAS IP Rightsemployment or consulting contract or other agreement with any director, each officer or employee or adopted, amended in any material respect or terminated any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by it for the benefit of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterits directors, employees or former employees;
(n) K. Except for improvements or betterments relating to its properties, made any labor dispute withcapital expenditures or capital additions or betterments in excess of an aggregate of $50,000;
L. Instituted, had instituted against it, settled or charge of unfair labor practice byagreed to settle any litigation, action or proceeding before any member of the VERITAS Group (court or governmental body relating to its property other than routine individual grievances), any activity collection suits instituted by it to collect amounts owed or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; orsuits in which the amount in controversy is less than $50,000;
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than M. Except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any transaction, or entered into, modified or amended any contract or commitment;
N. Entered into or given any promise, assurance or guarantee of the Ancillary Agreements)payment, discharge or fulfillment of any undertaking or promise made by any Person;
O. Sold, or knowingly disposed of, or otherwise divested itself of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
P. Made any, or acquiesced with any, change in any accounting methods, principles or material practices except as required by GAAP; or
Q. Entered into any agreement or made any commitment whether in writing or otherwise to take any of the types of action described in subsections A. through P. above.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in otherwise contemplated by this Agreement, during the ------------------------------------ VERITAS SEC Documents filed prior period from December 31, 2016 to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date Sellers and the Foreign Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not occurredbeen:
(a) any change change, condition, circumstance, event or event which could development that has had or would reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) with respect to any amendments Foreign Subsidiary or changes the Sellers in respect of the Certificate ownership of Incorporation the Purchased Assets or Bylaws the operation of the Business: any change in material accounting or Tax accounting method, any adoption or change of any member Tax election, any settlement or compromise of any claim, notice, audit report or assessment in respect of material Taxes, any filing of any amended Tax Return or other Tax Return, any entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to Taxes, or any extension or waiver of the VERITAS Groupstatute of limitations period applicable to any material Tax claim or assessment;
(c) any damageadoption, destruction to modification or loss proposal of VERITAS assets not covered by insuranceany change in the articles of incorporation, which would have a Material Adverse Effect on VERITASbylaws or other organizational documents of any Seller or Foreign Subsidiary;
(d) any redemption(i) acquisition by any Seller or Foreign Subsidiary (by merger, repurchase consolidation or acquisition of equity interests or assets or otherwise) of any corporation, limited liability company, partnership or other acquisition Person or division thereof, (ii) any investment by any Seller or Foreign Subsidiary in any other Person, or (iii) sale, lease, license, encumbrance or other disposition of shares of any member assets, properties, securities, rights or interests of the VERITAS Group (other than pursuant to arrangements with employees Sellers or consultants)any Foreign Subsidiary, or any declaration, setting aside expiration or payment lapse of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS EmployeesOwned Intellectual Property, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(ke) except in connection with the execution and delivery of the Credit Facilities, any merger or consolidation of any Seller or Foreign Subsidiary with any other Person, adoption of a plan of complete or partial liquidation of the Sellers or any Foreign Subsidiary, or authorization or undertaking of a dissolution, consolidation, restructuring, recapitalization or other reorganization of any Seller or Foreign Subsidiary;
(f) any making loans, or advances made by any member of the VERITAS Group of Seller or Foreign Subsidiary to any loanother Person, advance or capital contribution to or investment in any person other than extensions of credit to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made customers in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(lg) any capital expenditures by any Seller or Foreign Subsidiary in excess of $150,000.00;
(h) to the actual knowledge of the Sellers, any amendment or modification in any material respect, or any termination or cancellation of, relinquishmentany Material Contract, termination or non- renewal by VERITAS of entrance into any of the VERITAS Contracts, contract that would constitute a Material Contract (other than (x) bidding for and entering into Material Contracts with customers or suppliers in the ordinary course of business consistent with past practice;
, (my) any transfer or grant terminations of Material Contracts as a right under result of the VERITAS IP Rights, other than those transferred or granted expiration of the term of such Material Contracts and (z) renewals of Material Contracts in the ordinary course of business, business consistent with past practice);
(i) except in the ordinary course of business consistent with past practice or as required by applicable Law or the terms of any Benefit Plan, any (i) increase, acceleration of or provision for additional compensation, benefits (fringe or otherwise) or other rights to any employee, (ii) payment by any Seller or Foreign Subsidiary to any Person of any bonus, success fee or other similar payment in connection with the sale of the Shares or the other Transactions, except as would be a Sellers’ Expense hereunder, (iii) grant, or amendment or modification of any grant or agreement to grant, any severance, termination, retention or similar payment to any employee, (iv) loan or advance of any money or other property to any employee, (v) grant by any Seller or Foreign Subsidiary or any of their Affiliates of any equity or equity-based awards, or (vi) establishment, adoption, entry into, amendment or termination of any Benefit Plan, collective bargaining agreement or other labor agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date hereof;
(j) any hiring, or engagement of, by any Seller or Foreign Subsidiary, or offer of employment or engagement made by any Seller or Foreign Subsidiary to, any Person whose total annual compensation exceeds or is expected to exceed $200,000, or termination of the employment other than for cause of any employee who is an officer or key employee;
(k) acceleration or alteration in any material respect any of the Seller’s or any Foreign Subsidiary’s practices and policies relating to the rate of collection of accounts receivable or payment of accounts payable, or the failure by any Seller or Foreign Subsidiary to pay or satisfy any Liabilities when due and payable, except for any grant of a right to source code such Liabilities being contested in good faith by the applicable Seller or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) Foreign Subsidiary as of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASdate hereof; or
(ol) any agreement by any member of the VERITAS Group or commitment to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Sources: Asset and Securities Purchase Agreement (CSS Industries Inc)
Absence of Certain Changes or Events. Except as disclosed in (a) Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date Date, there has not occurred:
(a) been any change change, event, development, circumstance, state of facts or event which could effect that would reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;Effect.
(b) any amendments or changes Except as set forth in the Certificate of Incorporation or Bylaws of any member Section 2.6(b) of the VERITAS Group;
(c) any damageSeller Disclosure Schedule, destruction to or loss of VERITAS assets not covered by insurancesince the Balance Sheet Date, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except has been conducted in the ordinary course of the business, business consistent with past practice and necessary the Business has not and no S‑L Entity has with respect to respond the Business, the Purchased Assets or the Assumed Liabilities:
(i) (A) amended the articles of incorporation or bylaws (or similar governing documents) of any Business Entity, (B) split, subdivided, combined or reclassified their outstanding capital stock or equity interests or (C) declared, set aside or paid any non‑cash dividend or non‑cash distribution to third party solicitation of VERITAS Employeesany Person;
(fii) other than as required by applicable statute purchased, redeemed or governmental regulationotherwise acquired or issued, any material increase in sold, transferred, pledged, encumbered, assigned, conveyed, surrendered, relinquished or modification otherwise disposed of any VERITAS Group Benefit Arrangement debt or equity securities (including, but not limited to, the granting of stock including any convertible or exchange securities) or any options, restricted stock awards warrants or stock appreciation rights) that will become binding upon Newco upon consummation rights of the transactions contemplated herein, for any kind to acquire any debt or with respect to equity securities (including any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, convertible or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowexchange securities);
(giii) sold, transferred, pledged, encumbered, assigned, conveyed, surrendered, relinquished or otherwise disposed of any sale of a material amount of the VERITAS AssetsPurchased Asset or rights in or to any Purchased Asset, or any acquisition by options or rights of any member of the VERITAS Group of a material amount of assets, kind to acquire any Purchased Assets or rights in or to any Purchased Asset (other than in the ordinary course of the business, consistent with past practice);
(hiv) any alteration in any term sold, transferred, pledged, encumbered, assigned, conveyed, surrendered, relinquished or otherwise disposed of any outstanding capital stock of the Transferred Entities' assets, properties or rights, or any rights in or to any of the Transferred Entities' assets, properties or rights, or any options or rights of any kind to acquire capital stock any of the Transferred Entities' assets, properties or rights or rights in or to any of the Transferred Entities' assets, properties or rights (other than in the ordinary course business);
(A) incurred any Liability of a Business Entity or the Business with respect to any Debt, issued any debt securities of any member Business Entity or made any loans or advances involving a Business Entity or the Business or (B) caused or permitted any Business Entity or the Business to assume, guarantee or endorse, or otherwise as an accommodation become responsible for, any Liability of any other Person;
(vi) made any acquisition of any Person, substantially all of the VERITAS Group, including, but assets of any Person or the business(es) of any Person;
(vii) other than in connection with making promotions or filling vacancies with respect to any Business Employee whose aggregate annual cash compensation does not limited to, acceleration of the vesting exceed $75,000 or any change in as required by the terms of an Employment Agreement or Labor Agreement, (A) entered into any outstanding stock optionsnew, or amended or otherwise modified any Labor Agreement, (B) entered into or become a party to any new Employment Agreement or amended any existing Employment Agreement with any Business Employee, (C) granted or announced any increase in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable to any Business Employee, (D) established, adopted, amended or become a party to any new employee benefit or compensation plan, program or Contract or amended any existing Benefit Plan in a manner that affects compensation or benefits payable or obligations thereunder to any Business Employee, (E) accelerated any vesting of compensation or benefits or paid any compensation or benefits not otherwise due to any Business Employees, (F) granted any rights to severance or termination pay to, or entered into any employment, consulting or severance Contract with, any Business Employee, except, in each case, as required by Law or any collective bargaining or other trade union agreement or any Benefit Plan, (G) re‑deployed, dismissed or given notice to terminate the employment of any Business Employee whose aggregate annual cash compensation exceeds $75,000 per year, (H) entered into or amended any Contract with any Business Employee Representative(s), (I) materially increased the total number of employees, consultants, self‑employed contractors or agency workers that are employed or engaged by any Business Entity or (J) proposed to dismiss such number of Business Employees as would reasonably be expected to trigger any obligation to collectively consult an Employee Representative Body or provide notice under the WARN Act in the relevant jurisdiction;
(iviii) adopted a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization (other than a plan of liquidation adopted by Asset Seller with an effective time occurring after the Closing);
(ix) settled, released, waived or compromised any Action, unless such settlement or release contemplated only the payment of money (to be paid in full prior to the Closing Date) without admission of wrongdoing or misconduct and resulted in an absolute release of the underlying claim;
(x) made or changed any material Tax election, changed an annual accounting period, entered into any closing agreement, settled or compromised any material Tax claim or assessment, prepared any Tax Returns in a manner inconsistent with past customs and practices of the Sellers or the Transferred Entities, as applicable, with respect thereto, incurred any material liability for Taxes other than in the ordinary course of business, consistent with past practicefiled an amended Tax Return or a claim for refund of a material amount of Taxes, (A) surrendered any incurrence, assumption right to claim a refund of Taxes or guarantee by consented to any member extension or waiver of the VERITAS Group limitation period applicable to any Tax claim or assessment, or taken any other similar action, failed to pay any Taxes as they become due and payable, or omitted to take any action relating to the filing of any debt Tax Return or the payment of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesTax;
(jxi) except as required as a result of a change in Law or as required by GAAP, changed any creation or assumption by any member of the VERITAS Group financial accounting principles or practices, methods of accounting or accounting practice or policy;
(xii) entered into or discontinued any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course material line of business;
(kxiii) extended, breached, terminated or waived any making by material provision of, amended or otherwise modified any member material provision of the VERITAS Group of a Material Contract (or any loanContract which, advance if not so extended, breached, terminated or capital contribution to waived any provision of, amended or investment in any person other than to refinance otherwise modified, would be a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000Material Contract);
(lxiv) entered into any amendment of, relinquishment, termination transaction or non- renewal by VERITAS of any of the VERITAS ContractsContract with an Affiliate, other than such transactions or Contracts conducted in the ordinary course of business consistent with past practice;
(mxv) (A) undertaken, or committed to undertake, any transfer or grant individual capital expenditure in excess of a right under the VERITAS IP Rights, $50,000 other than those transferred the capital expenditures listed on Section 2.6(b)(xv) of the Seller Disclosure Schedule, (B) failed to undertake any individual capital expenditure listed on Section 2.6(b)(xv) of the Seller Disclosure Schedule or granted (C) failed to undertake any capital expenditure for the purpose of maintenance in the ordinary course of business;
(xvi) failed to maintain in full force and effect all material insurance policies or failed to take commercially reasonable efforts to replace or renew (on terms no less favorable in the aggregate to the Business) material insurance policies;
(xvii) amended, materially modified, extended, renewed or terminated any Leased Real Property Lease or entered into any new lease, sublease, license or other agreement for the use or occupancy of any real property (including the Real Property);
(xviii) demolished or removed any of the existing Improvements or erected any new improvements on the Real Property or any portion thereof, or failed to maintain the Real Property, including all of the Improvements, in the ordinary course of business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(oxix) committed to do or entered into any agreement by any member of the VERITAS Group Contract with respect to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreementset forth on Schedule 2.1(c):
(i) Since December 31, since the VERITAS Financial Statements Balance Sheet Date 2006, there has not occurredbeen any, and as of the Closing Date, there will not be any:
(ai) any change actual or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a threatened adverse change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASAssets;
(bii) change in accounting methods, principles or practices affecting any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS GroupAssets;
(ciii) any damage, destruction to or loss of VERITAS assets (whether or not covered by insurance, which would have a Material Adverse Effect on VERITAS) adversely affecting any of the Assets;
(div) any redemptionamendment, repurchase cancellation or other acquisition of shares termination of any member of the VERITAS Group (other than pursuant to arrangements with employees Contract, commitment, agreement, transaction, easement, permit, license or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect right relating to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, Assets which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kv) mortgage, pledge, claim, lien, option, charge, easement (including, without limitation, any making prescriptive easement), adverse possession, security interest, deed of trust, right of way, encroachment, building or use restriction, conditional sales agreement, encumbrance or other right of third parties, whether voluntarily incurred or arising by operation of law, affecting the Assets, including, without limitation, any member agreement to give any of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected foregoing in the VERITAS Financial Statements future, and any contingent sale or other than (i) loans, advances title retention agreement or capital contributions made lease in the ordinary course of the businessnature thereof (each, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000an “Encumbrance”);
(lvi) any amendment ofsale, relinquishment, termination assignment or non- renewal by VERITAS transfer of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practiceAssets;
(mvii) failure to pay or satisfy when due any transfer or grant of a right under Liability (defined in clause (b)(iii) below) pertaining to the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure LetterAssets;
(nviii) existence of any labor dispute with, other event or charge of unfair labor practice by, condition which in any member of one case or in the VERITAS Group (other than routine individual grievances), any activity aggregate has or proceeding by a labor union or representative thereof might reasonably be expected to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect an adverse effect on VERITASthe Assets; or
(oix) any agreement by any member of the VERITAS Group Seller Parties or the Water Companies to take do any of the actions things described in the preceding clauses (ai) through (nviii) (other than as expressly provided for herein.
(ii) Since December 31, 2006, each of the transactions contemplated Seller Parties and the Water Companies has, and as of the Closing Date, each of the Seller Parties shall have:
(i) carried on the Business as presently conducted and only in the usual and ordinary course;
(ii) used its best efforts to preserve the Assets intact, and to preserve the goodwill of its suppliers and customers; and
(iii) not incurred any Liability or made any commitment or entered into any other transaction outside the ordinary course of business as it affects the Assets.
(iii) For purposes of this Agreement, the term “Liability” shall mean any direct or indirect liability, indebtedness, obligation, responsibility, commitment, expense, claim, deficiency, guaranty or endorsement of or by this Agreement any individual, corporation (including any non-profit corporation), general or the Ancillary Agreementslimited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, court or other entity or governmental body (each, a “Person”), of any type, whether accrued, absolute, contingent, matured, unmatured or other, including, but not limited to (i) any liability or obligation of a Person arising under any employee benefit plan, and any liability or obligation with respect to any employee or former employee of a Person, (ii) any liability or obligation arising under any Regulation (defined in Section 2.1(n)), and (iii) any liability or obligation for taxes.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Basin Water, Inc.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to Schedule 5.9, since the date of this Agreementthe Nextera Balance Sheet, since the VERITAS Financial Statements Balance Sheet Date there has not occurredbeen any:
(a) any change Actual or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a threatened material adverse change in the trading price financial condition, working capital, shareholders' equity, assets, Liabilities, reserves, revenues, income earnings, prospects of VERITAS Common Stock be deemed Nextera and its Subsidiaries on a Material Adverse Effect on VERITASconsolidated basis;
(b) Change in accounting methods, principles or practices by Nextera or any amendments Subsidiary of Nextera affecting Nextera's assets, Liabilities or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Groupbusiness;
(c) Revaluation by Nextera or any damageSubsidiary of Nextera of any of their assets, destruction to including without limitation writing down the value of inventory or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASwriting off notes or accounts receivable;
(d) any redemptionDamage, repurchase destruction or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution loss (whether in cash, stock or propertynot covered by insurance) with respect to which has had or will have a material adverse affect on the capital stock assets or the business of any member of the VERITAS Group or, with respect to dividends Nextera or other distributions of cash or property arising from the VERITAS Business its Subsidiaries on a consolidated basis;
(e) Cancellation of any indebtedness or waiver or release of any right or claim of Nextera or any Subsidiary of Nextera relating to its activities or properties which had or will have a material increase adverse effect on their assets or business;
(f) Declaration, setting aside, or payment of dividends or distributions by Nextera or any Subsidiary of Nextera in respect of its equity securities or modification any redemption, purchase or other acquisition of any of the compensation securities of Nextera or benefits payable by VERITAS any Subsidiary of Nextera;
(g) Adverse change in employee relations which has or is reasonably likely to become payable to have a material adverse effect on the VERITAS Employeesproductivity, except the financial condition, 48 -43- results of operations of Nextera and its Subsidiaries on a consolidated basis or the relationships between the employees of Nextera and its Subsidiaries and the management of Nextera and its Subsidiaries;
(h) Payment, discharge or satisfaction of any Liabilities of Nextera or any Subsidiary of Nextera other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities set forth or reserved for on the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute Nextera Balance Sheet or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements incurred in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loansFailure to pay or satisfy when due any Liability of Nextera or any Subsidiary of Nextera, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, except where the aggregate amount of all such items outstanding at any time does failure would not exceed $1,000,000have a material adverse effect on Nextera and its Subsidiaries on a consolidated basis;
(lj) Disposition or lapsing of any amendment of, relinquishment, termination Proprietary Rights or non- renewal by VERITAS any disposition or disclosure to any person of any of the VERITAS Contracts, Proprietary Rights of Nextera or its Subsidiaries or Canadian Buyer not theretofore a matter of public knowledge other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign as would not have a Material Adverse Effect on VERITASmaterial adverse effect; or
(ok) Agreement by Nextera or any agreement by any member of the VERITAS Group its Subsidiaries to take do any of the actions things described in the preceding clauses (a) through (nk) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed set forth on Schedule 3.10, since September 30, 2008 through the date hereof, (i) the businesses of each of the Acquired Companies have been operated in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreementordinary course consistent with past practices, since the VERITAS Financial Statements Balance Sheet Date (ii) there has not occurredbeen a Material Adverse Effect and (iii) with respect to the Acquired Companies there has not been any:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in material reevaluation by the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws Acquired Companies of any member of their Assets, including, without limitation, writing down the VERITAS Group;
value of capitalized inventory or writing off notes or Accounts (c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of business);
(b) merger or consolidation with, purchase of substantially all of the businessassets of, consistent or other acquisition of any business or proprietorship, firm, association, corporation or other business organization or division thereof by any of the Acquired Companies;
(c) increase by any of the Acquired Companies of any bonuses, salaries or other compensation to any stockholder, director, member, manager, officer or employee thereof;
(d) entry by any of the Acquired Companies into any employment, severance, change of control, indemnification or similar contract with past practice and necessary to respond to third party solicitation any director, officer, manager or employee thereof or modification or termination of VERITAS Employeesany such existing agreements or contracts;
(e) entry into, termination or modification of any collective bargaining agreement or other written agreement by any of the Acquired Companies;
(f) other than as required by applicable statute adoption of, or governmental regulationincrease in the payments to or benefits under, any material increase in profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, severance or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, other employee benefit plan for or with respect to any employees of any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowAcquired Companies;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than change in the ordinary course of accounting methods or Tax elections used by the business, consistent with past practiceAcquired Companies;
(h) sale, lease, mortgage, subjection to any alteration in Liens or other disposal of or encumbrance of, any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any persontangible Asset, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements sales in the ordinary course of business;
(i) amendment, extension, renewal or termination of any leases to which any of the Acquired Companies is party, or entry into any new lease, sublease, license or other agreement for the use or occupancy of any real property by any of the Acquired Companies;
(j) entry into any transactions of the type described in Section 3.26 hereof;
(k) incurrence or assumption of any making by any member debt of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in Acquired Companies that would remain outstanding following the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000Closing;
(l) any amendment of, relinquishment, termination cancellation or non- renewal by VERITAS waiver of any of claims or rights with a value to the VERITAS ContractsAcquired Companies, other than individually or in the ordinary course aggregate, of business consistent with past practicemore than $25,000;
(m) any transfer or grant sale, lease, transfer, license, granting of a right under the VERITAS IP Rightscovenant not to ▇▇▇, abandonment, lapse, mortgage, subjection to any Liens or other than those transferred disposal of or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant encumbrance of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;Company Intellectual Property; or
(n) any labor dispute withagreement, whether oral or charge of unfair labor practice bywritten, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in Acquired Companies to do any of the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the Since November 30, ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date 2001 there has not occurredbeen any:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) except as set forth in Schedule 3.05(b) of the Disclosure ---------------- Schedules, change in accounting methods, principles or practices by the Seller or any amendments of its Subsidiaries (other than pursuant to a change in U.S. GAAP or changes in the Certificate of Incorporation or Bylaws a statement of any member appropriate accounting authority) materially affecting the Purchased Assets, liabilities or results of operations of the VERITAS GroupPet Business;
(c) waiver by the Seller or any damage, destruction to of its Subsidiaries of any material right under any Assumed Contract or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASany Permit;
(d) any redemptionsale, repurchase lease, license or other acquisition of shares disposition of, or subjecting to any Lien or Encumbrance of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group material Intellectual Property or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, business consistent with past practice, any material sale, lease, license or other disposition of, or subjecting to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowany Lien or Encumbrance any other Purchased Assets;
(ge) any sale of a material amount of the VERITAS Assets, acquisition or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights agreement to acquire capital stock of any member of assets for use in connection with the VERITAS GroupPet Business that are material, including, but not limited to, acceleration of the vesting individually or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, to the Pet Business, except purchases of Inventory or other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than assets in the ordinary course of business consistent with past practice;
(mf) (i) waiver by the Seller or any transfer of its Subsidiaries of any material claims or grant of a right under rights related to the VERITAS IP Rights, other than those transferred or granted Pet Business and included in the ordinary course of business, consistent with past practice, except for any grant of a right to source code Purchased Assets or grant (ii) waiver of any exclusive rights material benefits of, or agreement to modify in any material manner, any confidentiality, standstill or similar agreement to which the Seller or any its Subsidiaries is a party and relating to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure LetterProducts, the Purchased Assets or the Pet Business;
(ng) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group termination (other than routine individual grievances)by lapse of time) or failure to renew any material Assumed Contract, or termination or failure to renew, or receipt of any written threat (that was not subsequently withdrawn) to terminate or fail to renew, any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASmaterial Permit; or
(oh) any agreement damage, destruction or loss, whether or not covered by insurance, adversely affecting, either in any member of the VERITAS Group to take any of the actions described case or in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement aggregate, any Purchased Asset or the Ancillary Agreements)Pet Business which had, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Igi Inc)
Absence of Certain Changes or Events. (a) Except as disclosed in the ------------------------------------ VERITAS Seller SEC Documents Reports filed prior to the date of this Agreement or as set forth in Section 2.8(a) of the Seller Disclosure Schedule, since December 31, 2001 to the date of this Agreement, Seller and the Seller Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since the VERITAS Financial Statements Balance Sheet Date December 31, 2001, there has not occurred:
been (ai) any change in the financial condition, results of operations or event which could reasonably be expected to have business of Seller and any of the Seller Subsidiaries having a Material Adverse Effect on VERITAS; providedSeller or the Seller Subsidiaries, howevertaken as a whole, that in no event will a change in (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of Seller or any of the trading price of VERITAS Common Stock be deemed Seller Subsidiaries having a Material Adverse Effect on VERITAS;
Seller and the Seller Subsidiaries, taken as a whole, (biii) any amendments change by Seller in its accounting methods, principles or changes in the Certificate of Incorporation or Bylaws practices, (iv) any revaluation by Seller of any member of its assets in any material respect, (v) except for regular quarterly cash dividends on Seller Common Stock with usual record and payment dates, to the VERITAS Group;
(c) any damagedate of this Agreement, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Seller Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends its securities or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of Seller Subsidiary, (vi) any increase in the VERITAS Groupwages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any securities convertible executive officer, employee, or director from the amount thereof in effect as of January 1, 2002 (which amounts have been previously disclosed to Company), granted any severance or termination pay, entered into any contract to make or exchangeable for grant any such debt securities;severance or termination pay, or paid any bonus, (vii) any strike, work stoppage, slow-down or other labor disturbance, (viii) the execution of any collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, or (ix) any union organizing activities.
(jb) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be Except as set forth in Section 3.09(m2.8(b) of the VERITAS Seller Disclosure Letter;
(nSchedule, no third party has used, with or without permission, the corporate name, the trademarks, tradenames, service marks, logos, symbols or similar intellectual property of Seller or any Seller Subsidiary in connection with the marketing, advertising, promotion or sale of such third party’s products or services. Except as set forth in Section 2.8(b) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (Seller Disclosure Schedule, neither Seller nor any Seller Subsidiary is a party to any joint marketing or other than routine individual grievances), any activity or proceeding by affinity marketing program with a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)third party.
Appears in 1 contract
Sources: Merger Agreement (Mississippi Valley Bancshares Inc)
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date Date, except as set forth on SCHEDULE 4.4, there has not occurredbeen any:
(a) actual or threatened Material Adverse Change in the financial condition, working capital, Purchased Assets, Assumed Liabilities, reserves, revenues, income, or earnings of the Business;
(b) change in Tax or accounting methods, principles or practices by Seller affecting the Purchased Assets, Assumed Liabilities or the Business;
(c) material revaluation by Seller of any change of the Purchased Assets, including without limitation writing down the value of inventory or event writing off notes or accounts receivable;
(d) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting the Purchased Assets taken as a whole or the Business;
(e) cancellation of any indebtedness or waiver or release of any right or claim of Seller relating to the Purchased Assets or Business which could reasonably be expected to had or will have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments Purchased Assets or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS EmployeesBusiness;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of Business, increase in the rate of compensation payable or to become payable to any officer or other employee of Seller involved in the Business or any consultant, Representative or agent of Seller involved in the Business, including without limitation the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, or the addition to, modification of, or contribution to any Employee Plan, arrangement, or practice described in the Disclosure Schedule;
(g) adverse change in employee relations which has or is reasonably likely to have a Material Adverse Effect on the Business or the Purchased Assets or the relationships between the employees of Seller and the management of Seller involved in the Business;
(h) amendment, cancellation or termination of any material Contract, Lease, or Permit relating to the Purchased Assets or the Business or entry into any Contract, Lease, or Permit which is not in the ordinary course of business, consistent with past practiceincluding without limitation any employment or consulting agreements;
(i) mortgage, (A) any incurrence, assumption pledge or guarantee by any member of the VERITAS Group other Encumbrance of any debt Purchased Assets, except purchase money liens arising in the ordinary course of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesbusiness;
(j) sale, assignment or transfer of any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregatePurchased Assets, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making incurrence by any member Seller of Liabilities relating to the VERITAS Group of any loanBusiness, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made except Liabilities incurred in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000Business;
(l) increase or change in any amendment ofassumptions underlying, relinquishmentor methods of calculating, termination any doubtful account contingency or non- renewal by VERITAS other reserves for the Business;
(m) payment, discharge or satisfaction of any Liabilities of Seller relating to the VERITAS Contracts, Business other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(m) any transfer the Business of Liabilities set forth or grant of a right under reserved for on the VERITAS IP Rights, other than those transferred Financial Statements or granted incurred in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withcapital expenditure by Seller for the Business in excess of $10,000, or charge the incurring of unfair labor practice byany obligation by Seller to make any such capital expenditure;
(o) failure to pay or satisfy when due any Liability of Seller relating to the Business, any member of except where the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign failure would not have a Material Adverse Effect on VERITASthe Purchased Assets or the Business;
(p) disposition or lapsing of any material Proprietary Rights or any disposition or disclosure to any person of any material Proprietary Rights not theretofore a matter of public knowledge;
(q) existence of any other event or condition which in any one case or in the aggregate has or might reasonably be expected to have a Material Adverse Effect on the Business or the Purchased Assets;
(r) other than as set forth in SCHEDULE 4.4(r), payment not in the ordinary course of Business from Seller to or on behalf of Seller or any officer, director, stockholder or employee of Seller, pursuant to any agreement or otherwise between Seller or any such person or otherwise;
(s) any agreement, condition, action or omission which would be proscribed by (or require consent under) Section 6.5 had it existed, occurred or arisen after the date of this Agreement; or
(ot) any agreement by any member of the VERITAS Group Seller to take do any of the actions things described in the preceding clauses (a) through (ns) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed expressly permitted by this Agreement or as set forth in Schedule 4.6 hereto or in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementReports, since January 1, 2000, the VERITAS Financial Statements Balance Sheet Date business of the Company and the Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not occurredbeen:
(a) any change Material Adverse Effect; provided, that any adverse effect (i) that is caused by conditions affecting the economy or event security markets generally, (ii) that is caused by conditions affecting any of the primary industries in which could reasonably the Company currently competes or (iii) resulting from or arising in connection with this Agreement or the transactions contemplated hereby or the announcement hereof shall not be expected to have taken into account in determining whether there has been a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments damage, destruction or changes in the Certificate of Incorporation loss (whether or Bylaws of not covered by insurance) with respect to any member of the VERITAS Groupassets of the Company or any of the Subsidiaries having a Material Adverse Effect;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase redemption or other acquisition of shares of Shares by the Company or any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), Subsidiaries or any declaration, setting aside declaration or payment of any dividend or other distribution (whether in cash, stock or property) property with respect to Shares; except for purchases heretofore made pursuant to the capital stock of any member terms of the VERITAS Group orCompany's employee benefit plans;
(d) any change by the Company in accounting methods, with respect principles or practices used in preparing the Company's consolidated financial statements, other than any such change as may have been required by generally accepted accounting principles and which has been disclosed in writing to dividends or other distributions of cash or property arising from the VERITAS Business Parent;
(e) any material increase in or modification of revaluation by the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification Company of any VERITAS Group Benefit Arrangement asset (including, but not limited towithout limitation, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation any writing down of the transactions contemplated herein, for value of inventory or with respect to any writing off of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, notes or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractsaccounts receivable), other than in the ordinary course of business consistent with past practice;
(mf) any transfer entry by the Company or grant of any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a right under the VERITAS IP Rightswhole, other than those transferred commitments or granted transactions entered into in the ordinary course of business, business consistent with past practice;
(g) any material 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 restricted stock awards) stock purchase or other employee benefit plan, or any material other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiary, except for in the ordinary course of business consistent with past practice;
(h) any grant entry by the Company or any Subsidiary into any employment, consulting, severance, termination or indemnification agreement (i) with any employee of a right to source code Subsidiary that provides for annual payments of more than $100,000 and a term of one year or grant more or (ii) with any director or officer of the Company;
(i) (i) any settlement or compromise by the Company or any Subsidiary of any exclusive rights claim, litigation or other legal proceeding, other than in the ordinary course of business consistent with past practice in an amount not involving more than $2 million or (ii) any payment, discharge or satisfaction by the Company or any Subsidiary of any other claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) in the ordinary course of business and consistent with past practice or (B) with respect to any VERITAS IP Rightsother such claims, each of which shall be set forth in Section 3.09(mliabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASCompany; or
(oj) any agreement agreement, in writing or otherwise, by the Company or any member of the VERITAS Group Subsidiary to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions this Section 4.6, except as expressly contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 1 contract
Sources: Merger Agreement (Burns International Services Corp)
Absence of Certain Changes or Events. Except as disclosed set forth in section 4.12 of the ------------------------------------ VERITAS SEC Documents filed prior to the date of Disclosure Schedule or permitted by this Agreement, since the VERITAS Financial Statements Balance Sheet Date there December 31, 2004, neither Seller has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS EmployeesAcquired Businesses or the Acquired Assets:
(a) suffered any material damage, destruction, or casualty loss to its physical properties;
(b) suffered any material adverse change in its business or financial condition or in its relationship with any of its material suppliers, customers, distributors, lessors, licensors, licensees, or other third parties;
(c) incurred or discharged any obligation or liability except in the Ordinary Course of Business and except for obligations, liabilities, and transactions that do not individually or in the aggregate have a Material Adverse Effect;
(d) other than (i) with respect to agreements for which neither Purchasers nor TESSCO will have any liability after the Closing Date, increased the rate or terms of compensation or benefits payable to or to become payable by it to its directors, officers, or key employees or increased the rate or terms of any bonus, pension, or other employee benefit plan covering any of its directors, officers, or key employees except in each case increases occurring in the ordinary course Ordinary Course of Business in accordance with its customary practice (including normal periodic performance reviews and related compensation and benefits increases) or as required by any pre-existing Commitment;
(e) incurred any indebtedness for borrowed money or the businessdeferred purchase price of property;
(f) forgiven or canceled any indebtedness for borrowed money owing to it or waived any claims or rights of material value, consistent with past practice, or to respond to third party solicitation in each case except in the Ordinary Course of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowBusiness;
(g) any sale of a material amount of the VERITAS Assetssold, leased, licensed, or otherwise disposed of any acquisition by any member of the VERITAS Group of a its material amount of assets, assets other than sales of Inventory and sales of obsolete assets in the ordinary course Ordinary Course of the business, consistent with past practiceBusiness;
(h) amended or terminated any alteration in any term of any outstanding capital stock or rights material Commitment to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change which it is a party other than in the terms Ordinary Course of any outstanding stock options;Business; or
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights committed pursuant to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than a legally binding agreement to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of do any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be things set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (ac) through (nh) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)above.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSince December 31, since the VERITAS Financial Statements Balance Sheet Date 2000, there has not occurred:
been (ai) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedSeller, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(bii) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except Seller has been operating in the ordinary course of the business, business consistent with past practice in all material respects with commercially reasonable efforts to preserve the business of Seller intact, to keep available the services of the employees and necessary to respond to third party solicitation preserve (in the good faith judgment of VERITAS Employees;
Seller within the context of the Chapter 11 Cases) the goodwill of Seller's suppliers, customers and others having business relations with Seller, (fiii) other than as required any granting by applicable statute Seller or governmental regulation, any material of its subsidiaries of any increase in compensation or modification fringe benefits, except for increases of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) cash compensation in the ordinary course of the business, business and consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, payment by Seller or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term its subsidiaries of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Groupbonus, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, except for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions bonuses made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
, or any granting by Seller or any of its subsidiaries of any increase in severance or termination pay or any entry by Seller or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Seller of the nature contemplated hereby, (miv) entry by Seller 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 2.16 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 Seller with the SEC, (v) any transfer material change by Seller in its accounting methods, principles or grant practices, except as required by changes in GAAP, (vi) any revaluation by Seller of a right under any of its assets, including, without limitation, writing down the VERITAS IP Rightsvalue of capitalized inventory or writing off notes or accounts receivable, or (vii) any sale of assets of Seller other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements).
Appears in 1 contract
Absence of Certain Changes or Events. Except as ------------------------------------ disclosed in the ------------------------------------ VERITAS Company SEC Documents filed with the SEC prior to the date of this AgreementAgreement (but excluding (i) items disclosed under the heading "Factors That May Affect Our Business, Our Results of Operations and Our Stock Price" in the Company's Annual Report on Form 10-K for the year ended December 31, 2000 (the "Company Annual Report"), as filed with the SEC and similar disclosures elsewhere in the Company SEC Documents of the Company filed prior to the date hereof and (ii) items disclosed under the heading "Risk Factors" in the Annual Report on Form 10-K filed by Ether Sub for the year ended December 31, 2000 (the "Ether Sub Annual Report") and similar disclosures elsewhere in the Company SEC Documents of Ether Sub filed prior to the date hereof (collectively, the "Risk Factor Disclosures")) or as set forth in the Company Letter, since December 31, 2000, (A) the VERITAS Financial Statements Balance Sheet Date there has Company and its Subsidiaries have not occurred:
incurred any material liability or obligation (a) indirect, direct or contingent), or entered into any change material oral or event which could reasonably be expected to have written agreement or other transaction, that is not in the ordinary course of business or that would result in a Material Adverse Effect on VERITAS; providedthe Company, however(B) the Company and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that in no event will a change in the trading price of VERITAS Common Stock be deemed has had a Material Adverse Effect on VERITAS;
the Company, (bC) any amendments or changes there has been no change in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member the Company except for the issuance of shares of the VERITAS Group orCompany Common Stock pursuant to Company Stock Options and no dividend or distribution of any kind declared, with respect to dividends paid or other distributions made by the Company on any class of cash or property arising from the VERITAS Business ;
its stock, (eD) there has not been (v) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale adoption of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
new Company Plan (h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practiceas hereinafter defined), (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(lw) any amendment ofto a Company Plan materially increasing benefits thereunder, relinquishment, termination (x) any granting by the Company or non- renewal by VERITAS any of its Subsidiaries to any executive officer or other key employee of the Company or any of its Subsidiaries of any of the VERITAS Contractsincrease in compensation, other than except in the ordinary course of business consistent with past practice;
prior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents, (my) any transfer granting by the Company or grant any of a right under its Subsidiaries to any such executive officer or other key employee of any increase in severance or termination agreements in effect as of the VERITAS IP Rights, other than those transferred or granted date of the most recent audited financial statements included in the ordinary course Company SEC Documents or (z) any entry by the Company or any of businessits Subsidiaries into any employment, consistent severance or termination agreement with past practiceany such executive officer or other key employee, except for (E) there has not been any grant of a right to source code material change in the amount or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) terms of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member indebtedness of the VERITAS Group Company and its Subsidiaries from that described in the Company Annual Report (other than routine individual grievances), any activity excluding the Risk Factor Disclosures) or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have the Ether Sub Annual Report (excluding the Risk Factor Disclosures) and (F) there has been no event causing a Material Adverse Effect on VERITAS; or
(o) the Company, nor any agreement by any member of the VERITAS Group to take any of the actions described development that would, individually or in the preceding clauses (a) through (n) (other than aggregate, result in a Material Adverse Effect on the transactions contemplated by this Agreement or the Ancillary Agreements)Company.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in otherwise set forth on the ------------------------------------ VERITAS SEC Documents filed prior to Sellers Disclosure Schedule or reflected on the date of this AgreementInterim Balance Sheet, since the VERITAS Financial Statements Interim Balance Sheet Date there has not occurredDate:
(a) there has not been any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price condition (financial or otherwise), operations, prospects or results of VERITAS Common Stock be deemed operations of the Acquired Companies taken as a Material Adverse Effect on VERITASwhole;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member none of the VERITAS GroupAcquired Companies has amended or changed its Charter Documents;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member none of the VERITAS Group (other than pursuant to arrangements with employees or consultants)Acquired Companies has declared, or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, stock or property) with respect to any Equity Security or any other security;
(d) other than the capital stock of any member Reorganization, none of the VERITAS Group orAcquired Companies has split, with respect to dividends combined or reclassified any Equity Security or other distributions of cash security, or property arising from the VERITAS Business issued, or authorized for issuance, any Equity Security or other security;
(e) none of the Acquired Companies has altered any material increase in term of any outstanding Equity Security or modification other security;
(f) Except for the Key Officers, none of the Acquired Companies has (i) increased or modified the compensation or benefits payable by VERITAS or to become payable by the Acquired Companies to any of its current or former directors, employees, contractors or consultants, (ii) increased or modified any Benefit Plan, payment or arrangement made to, for or with any current or former directors, employees, contractors or consultants of the VERITAS EmployeesAcquired Companies, except or (iii) entered into any employment, severance or termination agreement;
(g) other than the sale of inventory in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation none of VERITAS Employeesthe Acquired Companies has sold, leased, transferred or assigned any property or assets of the Acquired Companies;
(fh) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation none of the transactions contemplated hereinAcquired Companies has incurred, assumed or guaranteed any Indebtedness;
(i) none of the Acquired Companies has created or assumed any Lien on any asset, except for or Liens arising under lease financing arrangements existing as of the Balance Sheet Date, Liens for Taxes not yet due and payable with respect to any of which the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, Acquired Companies maintain adequate reserves and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 belowPermitted Liens;
(gj) any sale of a material amount none of the VERITAS AssetsAcquired Companies has made any loan, advance or capital contribution to, or investment in, any acquisition by any member Person;
(k) none of the VERITAS Group of a material amount of assets, Acquired Companies has entered into any Material Contract other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(il) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loansno Material Contract has been modified, advances or capital contributions made in the ordinary course of the business, and (ii) other loans no rights under any Material Contract have been waived or accelerated and advances, where (iii) no Material Contract that would be required to be listed as a Material Contract pursuant to Section 3.17 hereof if such Contract were in effect on the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination date hereof has been terminated or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practicecancelled;
(m) any transfer none of the Acquired Companies has sold, transferred, pledged or grant of a right under the VERITAS IP Rightsassigned, other than those transferred or granted and there has been no material reduction in the ordinary course of businessvalue of, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure LetterAcquired Company Intellectual Property;
(n) there has not been any labor dispute withdispute, other than individual grievances, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees oremployees of the Acquired Companies;
(o) there has not been any violation of or conflict with any Law to which the business, operations, assets or properties of any of the Acquired Companies are subject;
(p) none of Sellers or the Acquired Companies has agreed or entered into any arrangement to VERITAS' Knowledgetake any action which, any campaign being conducted if taken prior to solicit authorization from VERITAS Employees to be represented by such labor unionthe date hereof, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASmade any representation or warranty set forth in this Article III untrue or incorrect;
(q) there has not been any material damage, destruction or loss with respect to the property and assets of the Acquired Companies, whether or not covered by insurance;
(r) none of Sellers or the Acquired Companies has made any change in accounting policies or practices;
(s) none of Sellers or the Acquired Companies has made any Tax election, changed its method of Tax accounting or settled any claim for Taxes; or
(ot) any agreement by any member none of Sellers or the VERITAS Group Acquired Companies has agreed, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to date of the Latest Unaudited Balance Sheet through the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date Sellers have conducted the Business in the Ordinary Course of Business and there has not occurredbeen:
(a) any change event, change, development or event which could occurrence that has had or would reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments sale, assignment, transfer or changes other disposition of any material properties or assets relating to the Business, other than (i) any Excluded Assets, (ii) any Inventory sold to third parties in the Certificate Ordinary Course of Incorporation Business or Bylaws of (iii) any member of the VERITAS Groupproperties set forth on Schedule 3.07(b) hereto;
(c) any damagematerial Encumbrance (other than any Permitted Encumbrance) created on or arising with respect to any material properties or assets relating to the Business, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITASother than any Excluded Assets;
(d) any redemptionmaterial damage, repurchase destruction or other acquisition of shares of casualty loss (whether or not insured against) affecting any member of material properties or assets relating to the VERITAS Group (Business, other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Excluded Assets;
(e) any revocation or termination or material increase in curtailment or modification reduction, or any notice of the compensation any threatened revocation or benefits payable by VERITAS termination or to become payable material curtailment or reduction of any material Permits or utilities (including, water supply or gas or electric service) that relate to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS EmployeesBusiness;
(f) other than as required any cancellation by applicable statute or governmental regulation, the Sellers of any material debt or waiver of any material Claim or right of value relating to the Business; or
(g) any increase in the compensation paid or modification of any VERITAS Group payable, whether pursuant to a Benefit Arrangement (includingPlan or otherwise, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employeesofficers, other than employees, consultants or agents whose employment relates to the Business or who render services in connection therewith or any payment or commitment, whether pursuant to a Benefit Plan or otherwise, for the payment of any bonus, additional compensation, service award, welfare, pension, retirement, termination or severance benefit to any of such officers, employees, consultants or agents, in each case, except (i) in the ordinary course Ordinary Course of the businessBusiness, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after for changes required by applicable Law or the terms of any Benefit Plan or Labor Agreement as in effect on the date of this Agreement, which is authorized, if required, pursuant or (iii) as a result of broad-based changes to Section 5.3 below;
(g) any sale of a material amount Benefit Plan that apply to similarly-situated employees of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for Sellers and their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Affiliates.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in Since the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there ------------------------------------ Date, in conducting its business and affairs, including but not limited to use and operation of the Seller's assets, the Seller has not occurrednot:
(a) incurred any change obligation or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
liability (bcontingent or otherwise) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, normal trade or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than business obligations incurred in the ordinary course of business, consistent with past practicethe performance of which will not, (A) any incurrence, assumption individually or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance have a liability reflected material adverse effect on the Seller's financial condition or results of operations and (ii) obligations under contracts, agreements, leases and easements described in Section 4.7(a) of the Disclosure -------------------------------- Schedule, the performance of which will not, individually or in the VERITAS Financial Statements aggregate, -------- have a material adverse effect on the Seller's financial condition or results of operations;
(b) mortgaged, pledged or subjected to any lien, charge, security interest or to any other encumbrance any of the assets of the Seller (whether tangible or intangible);
(c) made any material additions to, sold, assigned, transferred, conveyed, leased or otherwise disposed of, or agreed to sell, assign, transfer, convey, lease or otherwise dispose of any of its assets or properties, except for fair consideration in the ordinary course of business;
(kd) canceled or compromised any making by any member of the VERITAS Group of any loandebt or claim, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions except for adjustments made in the ordinary course of business which, in the businessaggregate, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does are not exceed $1,000,000material;
(le) waived or released any amendment ofrights, relinquishmentwhether or not in the ordinary course of business;
(f) transferred or granted any rights under any concessions, termination leases, licenses, agreements, patents, inventions, trademarks, trade names, copyrights, or non- renewal by VERITAS with respect to any know-how;
(g) made or granted any general wage or salary increase or entered into any written employment contract with any officer or employee involving an annual basic rate of compensation in excess of $80,000 or a period of employment of more than thirty days;
(h) entered into any of the VERITAS Contractstransaction, contract or commitment performed its obligations under any contract or commitment, modified or amended any contract or commitment other than in the ordinary course of business;
(i) made any capital expenditure or entered into any commitment therefor which, individually, exceeds $50,000;
(j) suffered any material casualty loss or damage, whether or not such loss or damage shall have been covered by insurance;
(k) suffered any material adverse change in its operations, earnings, assets, liabilities, properties, business consistent with past practiceor prospects or in its condition, financial or otherwise;
(l) lost any supplier or suppliers which loss or losses, individually or in the aggregate, has or may have a material adverse effect on the results of operations of the Seller;
(m) lost any transfer customer or grant of a right under the VERITAS IP Rightscustomers which loss or losses, other than those transferred individually or granted in the ordinary course aggregate, has or may have a material adverse effect on the results of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) operations of the VERITAS Disclosure Letter;Seller; or
(n) introduced any labor dispute withmaterial change with respect to the operation of its business, including its method of accounting, whether by act or charge by lapse of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity time or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)attention.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Except as disclosed set forth on Section 3.6(a) of the Seller Disclosure Letter, since December 31, 2001, there has not been any change, event, development, effect or occurrence that has had, or would reasonably be expected to have, individually or in the ------------------------------------ VERITAS SEC Documents filed prior aggregate, a Material Adverse Effect.
(b) Except as set forth in Section 3.6(b) of the Seller Disclosure Letter, since December 31, 2001 to the date of this Agreement, since Seller has conducted the VERITAS Financial Statements Balance Sheet Date there has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change Business in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damageordinary course consistent with past practice, destruction to or loss of VERITAS assets not covered by insuranceand neither Seller nor Seller Sub has, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of Business or any member of the VERITAS Group orConveyed Assets:
(i) subjected any of the Conveyed Assets to any material Liens, with respect to dividends or other distributions of cash or property arising from the VERITAS Business than Permitted Liens;
(eii) sold, transferred, leased, subleased, licensed or otherwise disposed of, to any third party, any material increase in Conveyed Assets (other than Intellectual Property) or modification other material properties or material assets (other than Intellectual Property) necessary for the conduct of the compensation or benefits payable by VERITAS or to become payable to the VERITAS EmployeesBusiness, except for sales of inventory and the disposition of obsolete equipment in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, business consistent with past practice;
(hiii) sold, licensed or sublicensed or otherwise transferred any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
third party under (i) any Conveyed Intellectual Property or (ii) any Intellectual Property that is the subject of the Intellectual Property Transfer Agreements or the Intellectual Property License Agreement, other than in the ordinary course case of businessIntellectual Property subject to the Intellectual Property License Agreement, consistent with past practice, (A) any incurrence, assumption or guarantee transfers that would be permitted by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesIntellectual Property License Agreement;
(jiv) entered into any creation Assumed Contract or assumption by accelerated, cancelled, modified or terminated any member of Assumed Contract, in each case, which is material to the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS ContractsBusiness, other than in the ordinary course of business consistent with past practice;
(mv) assigned any transfer duties and/or responsibilities to any Other Employee, which employee, but for such assignment, would have been classified as an Employee;
(vi) increased benefits payable to Employees under existing severance, change of control or grant of a right under the VERITAS IP Rightstermination pay policies or employment agreements, or increased compensation, bonus or other benefits payable to Employees, other than those transferred in accordance with normal, recurring compensation increases and as required under any Seller Benefit Plans;
(vii) surrendered, revoked or granted otherwise terminated any Required Permit, except in connection with any renewal or reissuance of any such Required Permit;
(viii) incurred Assumed Liabilities, other than in the ordinary course of business, business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(nix) waived, released or assigned any labor dispute withmaterial rights, which rights, but for such waiver, release or charge of unfair labor practice byassignment, any member of the VERITAS Group (would have been classified as Conveyed Assets, other than routine individual grievances)in the ordinary course of business consistent with past practice;
(x) experienced any material damage, destruction or casualty loss (whether or not covered by insurance) with respect to any activity material Conveyed Asset other than as a result of ordinary wear and tear;
(xi) delayed or proceeding by a labor union or representative thereof to organize postponed the payment of any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, Assumed Liability outside the ordinary course of business consistent with past practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(oxii) any agreement by any member of the VERITAS Group agreed, whether in writing or otherwise, to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions foregoing, except as expressly contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amgen Inc)
Absence of Certain Changes or Events. Except as disclosed set forth in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSchedule 4.14, since the VERITAS Financial Statements Balance Sheet Date March 31, 2003 there has not occurredbeen any:
(a) any change or event which could reasonably be expected failure to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in operate the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except business in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(hb) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than except in the ordinary course of business, business consistent with past practice, (A) any incurrencematerial sale, assumption assignment, license, transfer or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS encumbrance of any of the VERITAS ContractsPurchased Assets, other than tangible or intangible, singly or in the aggregate;
(c) new contracts relating to the business of Solutions or the Purchased Assets, or extensions, modifications, terminations or renewals thereof, except where entered into, modified or terminated in the ordinary course of business consistent with past practice;
(md) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted except in the ordinary course of business, business consistent with past practice, disposition or lapsing of any of any proprietary rights in the Intellectual Property constituting Purchased Assets, in whole or in part;
(e) to Seller's knowledge, disclosure by Seller or any employee of Seller of any trade secret (including, without limitation, process and know-how) relating exclusively to the business of Solutions to any Person not an employee or not otherwise subject to a non-disclosure agreement or fiduciary obligation of confidentiality;
(f) material change in accounting methods or practices by Seller relating to the business of Solutions or the Purchased Assets;
(g) material revaluation by Seller of any of the Purchased Assets or any portion thereof, including writing off or establishing reserves with respect to inventory, notes or accounts receivable;
(h) physical damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the Purchased Assets or the business of Solutions;
(i) capital expenditure or execution of any lease or any incurring of liability therefor by Seller relating to the business of Solutions or the Purchased Assets, involving payments or obligations in excess of $100,000 in the aggregate;
(j) failure to pay when due any obligation of Seller relating to the business of Solutions or the Purchased Assets, other than obligations that are not material to the business of Solutions or the Purchased Assets;
(k) cancellation of any indebtedness or waiver of any rights of substantial value relating to the Purchased Assets or the business of Solutions by Seller, except (i) in the ordinary course of business consistent with past practice (ii) indebtedness or rights that are not material to the business of Solutions or the Purchased Assets;
(l) indebtedness incurred by Seller for borrowed money, or any commitment to borrow money entered into by Seller, in connection with the business of Solutions or relating to the Purchased Assets, except for any grant indebtedness that is not material to the business of a right to source code Solutions or grant the Purchased Assets;
(m) payment, discharge or satisfaction of any exclusive rights liabilities of Seller relating to any VERITAS IP Rightsthe business of Solutions or the Purchased Assets other than the payment, each discharge or satisfaction of which shall be set forth liabilities as they come due or otherwise in Section 3.09(m) the ordinary course of the VERITAS Disclosure Letter;business consistent with past practice of liabilities; or
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group Seller directly or indirectly to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except As of the date hereof, except as disclosed in the ------------------------------------ VERITAS IMS SEC Documents filed prior to the date of this Agreement or as contemplated by this Agreement, since the VERITAS Financial Statements IMS Balance Sheet Date (and other than in compliance with Section 4.3) there has not occurred:
(a) any change in the financial condition, properties, businesses or event which could results of operations of IMS and the IMS Subsidiaries taken as a whole, that is reasonably be expected likely to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASIMS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS GroupIMS;
(c) any damage, damage destruction to or loss of VERITAS assets not to physical property, whether covered by insuranceinsurance or not, which would have that is reasonably likely to constitute a Material Adverse Effect on VERITASIMS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group IMS Common Stock by IMS (other than pursuant to arrangements with terminated employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to IMS Common Stock, other than regular quarterly dividends on the capital IMS Common Stock and IMS's ongoing common stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business repurchase program;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable by IMS to the VERITAS Employeesany of its directors or employees, except in the ordinary course of the business, business consistent with past practice and necessary to respond to third party solicitation of VERITAS Employeespractice;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group bonus, pension, or IMS Employee Plan or IMS Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated hereinmade to, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assetsits employees, other than in the ordinary course of business consistent with past practice;
(g) any acquisition or sale of a material amount of property or assets of IMS, other than in the business, ordinary course of business consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock security of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock optionsIMS;
(i) other than in the ordinary course of business, consistent with past practice, any (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; securities of IMS or (CB) issuance or sale of options or other rights to acquire from the VERITAS GroupIMS, directly or indirectly, debt securities of any member of the VERITAS Group, IMS or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any material transfer or grant of a right under the VERITAS IMS IP RightsRights (as defined in Section 2.14 below), other than those transferred or granted in the ordinary course of business, business consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterpractices;
(nk) any material labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any material activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, employees of IMS or any material campaign being conducted to solicit authorization from VERITAS Employees employees to be represented by such labor unionunion or any material lockouts, where strikes, slow downs, work stoppages or threats thereof by or with such disputeemployees;
(l) any failure to make any material contribution due under any of the IMS Employee Plans;
(m) any event, practice, activity, proceeding, occurrence or c ampaign would development which is reasonably likely to have a Material Adverse Effect on VERITAS; orIMS;
(n) any material change in the accounting practices of IMS, except for any such change required by reason of a concurrent change in GAAP.
(o) any agreement or arrangement made by any member of the VERITAS Group IMS to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Agreement untrue or incorrect as of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)date when made unless otherwise disclosed.
Appears in 1 contract
Sources: Merger Agreement (Ims Health Inc)
Absence of Certain Changes or Events. Except (a) Since December 31, 2007, except as disclosed in the ------------------------------------ VERITAS Seller SEC Documents Reports filed after such date and prior to the date of this AgreementAgreement and except as disclosed in the Business Financial Statements, since (a) Seller and each of its Subsidiaries have conducted the VERITAS Financial Statements Balance Sheet Date Businesses in all material respects in the ordinary course consistent with past practice, and (b) there has not occurred:
(a) been any change change, circumstance or event which could that has had, or would reasonably be expected to have have, a Business Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;Effect.
(b) Since the date of the Most Recent Balance Sheet, except as set forth in Section 4.6 of the Seller Disclosure Schedule, there has not been:
(i) any amendments revaluation by a Seller or changes any Subsidiary of Seller of any of the Purchased Assets, including the writing down or off of notes or accounts receivable, other than in the Certificate ordinary course of Incorporation or Bylaws of any member of the VERITAS Groupbusiness;
(cii) any entry by Seller or any Subsidiary of Seller into any material commitment or transaction, including incurring or agreeing to incur capital expenditures related to the Business in excess of, or any entry into any lease obligations with aggregate payments in excess of, one hundred thousand dollars ($100,000), individually or five hundred thousand dollars ($500,000) in the aggregate;
(iii) any theft, condemnation or eminent domain proceeding or any damage, destruction or casualty loss affecting any asset material to the Business, whether or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(div) any redemptionsale, repurchase assignment, lease or transfer of any asset material to the Business, except in the ordinary course of business;
(v) any waiver by Seller or any Subsidiary of Seller of any material rights related to the Business or the Purchased Assets;
(vi) any mortgage, pledge or other acquisition of shares encumbrance of any member of the VERITAS Group (Purchased Asset, other than pursuant to arrangements with employees or consultants), or Permitted Encumbrances; or
(vii) any declaration, setting aside or payment of any dividend by a Subsidiary of Seller, or the marking of any other distribution (whether in cash, stock or property) with respect to of the capital stock of any member a Subsidiary of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS AssetsSeller, or any direct or indirect redemption, purchase or other acquisition by any member a Subsidiary of the VERITAS Group Seller of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding its own capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)stock.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed Since the Balance Sheet Date, (x) the Business has been operated in the ------------------------------------ VERITAS SEC Documents filed prior ordinary course of business, consistent with past practice, (y) there has been no Material Adverse Change in or with respect to the date Business or the Lottery Assets and (z) there has been, to the knowledge of this AgreementSeller, no threatened Material Adverse Change in or with respect to the Business or the Lottery Assets. Without limiting the generality of the foregoing, since the VERITAS Financial Statements Balance Sheet Date there Date, Seller has not occurredmade or suffered any:
(a) (i) sale, assignment, lease or transfer of any change of the Lottery Assets, material singly or event in the aggregate, other than in the ordinary course of Seller's business, consistent with past practice, to persons who are not Affiliates of Seller for fair consideration or (ii) mortgage, pledge or other Encumbrance of any Lottery Asset, except Permitted Encumbrances;
(b) cancellation, termination, amendment, modification or waiver of any Contract to which could Seller is a party and which relates to the Lottery Assets or the Business, or by which the Business or any of the Lottery Assets are bound (excluding open purchase orders, or groups of related open purchase orders, of less than Ten Thousand Dollars ($10,000), singly or in the aggregate), which cancellation, termination, amendment, modification or waiver has resulted, or is reasonably be expected likely to have result, in a Material Adverse Effect on VERITAS; providedSeller, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments Business or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS GroupLottery Assets;
(c) (i) increase in the compensation payable or to become payable by Seller to any damage, destruction to of its directors or loss of VERITAS assets not covered by insurance, officers which would have a Material Adverse Effect on VERITASthe Lottery Assets or the Business, (ii) increase in the base compensation payable or to become payable to any Personnel of Seller (other than directors or officers) which would have a Material Adverse Effect on the Lottery Assets or the Business, (iii) increase in the sales commission rate payable or to become payable to any Personnel of Seller (other than directors or officers) relating to the Business, (iv) loan, bonus, incentive compensation (excluding sales commissions), service award or other like benefit granted, made or accrued, contingently or otherwise, to or for the benefit of any of the Personnel which would have a Material Adverse Effect on the Lottery Assets or the Business, except pursuant to the existing plans and arrangements described in SCHEDULE 4.19, (v) employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by Seller to any of the Personnel except pursuant to the existing plans and arrangements described in SCHEDULE 4.19, (vi) new employment or consulting agreement to which Seller is a party or any written or oral termination, cancellation or amendment thereof (except with respect to employees at will without a written agreement) which would have a Material Adverse Effect on the Lottery Assets or the Business, (vii) collective bargaining agreement or any termination or amendment thereof or (viii) with respect to any stockholder or other Affiliate of Seller, any payment or distribution or other like benefit granted, made or accrued, contingently or otherwise which would have a Material Adverse Effect on the Lottery Assets or the Business;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant addition to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation employee benefit plans, arrangements or benefits payable by VERITAS or to become payable to practices described in SCHEDULE 4.19 affecting any of the VERITAS Employees, except Personnel other than (i) contributions made in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if the extension of coverage to any of the Personnel who became eligible after the date Balance Sheet Date;
(e) capital expenditure or commitment to make any capital expenditure or execution of this Agreementany Lease or any incurring of Liability therefor by Seller relating to the Business or the Lottery Assets which would have a Material Adverse Effect on the Lottery Assets or the Business;
(f) failure of Seller to carry on the Business diligently in the ordinary course and to use its reasonable best efforts to preserve the Business intact, which is authorizedto keep available the services of its Personnel, if requiredand to preserve the goodwill of its suppliers, pursuant customers, distributors and others having business relations with it, including, without limitation, any failure of Seller to Section 5.3 belowpay such suppliers or others in a timely fashion;
(g) change in accounting methods, principles or practices by Seller, including, without limitation, any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than change in the ordinary course application or interpretation of GAAP which would have a Material Adverse Effect on the business, consistent with past practiceLottery Assets or the Business;
(h) any alteration damage, destruction or loss (whether or not covered by insurance) that has had, or may reasonably be expected to have, an adverse effect on the Business or the Lottery Assets that exceeds Ten Thousand Dollars ($10,000) in any term one instance;
(i) declaration, setting aside for payment or payment of dividends or distributions in respect of any outstanding capital stock equity security of Seller that involves or rights relates to acquire capital stock the Lottery Assets or any redemption, purchase or other acquisition of any member of Seller's equity securities that involves or relates to the VERITAS GroupLottery Assets, or any bonus, fee or other payment or any other transfer of Lottery Assets to or on behalf of any stockholder, any Affiliate of Seller or any Affiliate of any stockholder, including, but not limited to, acceleration any payment of principal of or interest on any debt owed to any such stockholder or Affiliate that involves or relates to the vesting or any change in the terms of any outstanding stock optionsLottery Assets;
(j) indebtedness incurred for borrowed money or entry into any commitment to borrow money, any loans made or agreed to be made by Seller, or indebtedness guaranteed by Seller that involves or relates to the Lottery Assets;
(k) change in or amendment of Seller's Articles of Incorporation or Bylaws in a manner that affects the Lottery Assets or the Business, or adversely affects Seller's ability to transfer the Lottery Assets as required by this Agreement;
(l) acquisition (by merger, consolidation, acquisition of assets, stock or other securities or otherwise) of, capital investment in, loan or advance to, agreement to loan or advance to or guarantee of indebtedness for borrowed money of (i) any person or (ii) any portion of the assets of any person that constitutes a division or operating unit of such person in a manner that affects the Lottery Assets or the Business, or adversely affects Seller's ability to transfer the Lottery Assets as required by this Agreement;
(m) revaluation of any of the Lottery Assets, including, without limitation, any writeoff of notes or accounts receivable or any increase in any reserve, other than in the ordinary course of business, consistent with past practice, but in no event exceeding Ten Thousand Dollars (A$10,000) individually or Twenty-Five Thousand Dollars ($25,000) in the aggregate (such amounts to be calculated without netting any incurrencedecrease);
(n) cancellation, assumption waiver or guarantee by any member of the VERITAS Group release of any debt right or claim (or series of any personrelated rights or claims) relating to the Business, other than any member of the VERITAS Groupas set forth in (o), for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset involving in excess of Ten Thousand Dollars ($2,500,000 10,000) individually or Twenty-Five Thousand Dollars ($25,000) in the aggregate, aggregate or other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice; or
(o) failure to pay or satisfy when due any Liability of Seller, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign failure would not have a Material Adverse Effect on VERITASthe Lottery Assets or the Business; or
(op) any an agreement (either written or oral) by any member of the VERITAS Group to take Seller or any of the actions described in Personnel to do any of the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (On Point Technology Systems Inc)
Absence of Certain Changes or Events. Except as disclosed set forth in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSchedule 3.7, since the VERITAS Financial Statements Balance Sheet Date Date, Seller has conducted the Business in the ordinary course and there has not occurred:
occurred any of the following: (a) any change change, effect or event which could reasonably be expected circumstance that is materially adverse to have a Material Adverse Effect on VERITASthe business, assets, condition (financial or otherwise) or results of operations of the Business, the Purchased Assets or Seller; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate certificate of Incorporation incorporation or Bylaws bylaws of any member of the VERITAS Group;
Seller; (c) any damagedamage to, destruction to or loss of VERITAS assets any material asset of Seller (whether or not covered by insurance, which would have a Material Adverse Effect on VERITAS;
); (d) any redemptionmaterial change by Seller in its accounting methods, repurchase principles or other acquisition of shares practices; (e) any material revaluation by Seller of any member of its assets, including, without limitation, writing down the VERITAS Group (value of inventory or discounting, accelerating or writing off notes or accounts receivable other than pursuant to arrangements with employees or consultants)in the ordinary course of business; (f) any sale of a material amount of property of Seller, or except in the ordinary course of business; (g) any declaration, setting aside or payment of any dividend or distribution in respect of the equity interests of Seller or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
Seller’s equity; (eh) any material increase in or modification of the compensation or benefits or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, equity option, equity purchase or other employee benefit plan, or any other increase in the compensation payable by VERITAS or to become payable to the VERITAS Employeesany executive officers of Seller, in each case, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, business consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and ; (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(gi) any sale creation or assumption by Seller of a any Encumbrance on any material amount asset of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assetsSeller, other than in the ordinary course of the business, business consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal Person by VERITAS of any of the VERITAS ContractsSeller, other than advances to employees to cover travel and other ordinary business-related expenses in the ordinary course of business consistent with past practice;
; (mk) any transfer incurrence or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant assumption by Seller of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
indebtedness or (nl) any labor dispute withmaterial modification, amendment, assignment or charge termination of unfair labor practice by, or relinquishment by Seller of any member of the VERITAS Group (other than routine individual grievances), rights under any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Assumed Contract.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior Since December 31, 2007 to the date of hereof, (i) except as otherwise contemplated, required or permitted by this Agreement, since the VERITAS Financial Statements Balance Sheet Date business of Peak and its Subsidiaries have been conducted in all material respects in the ordinary course of business and (ii) there has not occurred:
been: (a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITASPeak; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend on or bonus issue of, or other distribution (whether in cash, stock or property) with in respect to the of, any of Peak’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by Peak of (1) any of Peak’s capital stock or any other securities of Peak or its Subsidiaries or (2) any options, warrants, calls or rights to acquire any such shares or other securities; (c) any consolidation, subdivision, split, combination or reclassification of any member of the VERITAS Group orPeak’s or any of its Subsidiaries’ capital stock; (d) any granting by Peak or any of its Subsidiaries of any increase in compensation or benefits, with respect to dividends or other distributions except for normal increases of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, business consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, payment by Peak or any acquisition by of its Subsidiaries of any member of the VERITAS Group of a material amount of assetsbonus, other than except for bonuses made in the ordinary course of the business, business consistent with past practice;
, or any granting by Peak or any of its Subsidiaries of any increase in severance or termination pay or any entry by Peak or any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Peak of the nature contemplated hereby; (e) entry by Peak 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 2.17) other than licenses in the ordinary course of business with terms and conditions consistent with past practice; (f) entry by Peak or any of its Subsidiaries into any material amendment or consent with respect to any licensing agreement which has been filed or is required to be filed by Peak with the SEC; (g) any material change by Peak in its accounting methods, principles or practices, except as required by concurrent changes in GAAP; (h) any alteration in revaluation by Peak or any term of its Subsidiaries of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Groupits assets, including, but not limited towithout limitation, acceleration writing down the value of the vesting capitalized inventory or any change in the terms of any outstanding stock options;
(i) writing off notes or accounts receivable other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances any sale of assets of Peak or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, its Subsidiaries other than in the ordinary course of business consistent with past practice;
; or (mj) any transfer Tax election or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent accounting method change inconsistent with past practice, except for any grant of a right agreement to source code pay, settlement or grant compromise of any exclusive rights material Tax liability or extension or waiver of any limitation period with respect to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withTaxes, or charge request or negotiation for or receipt of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Tax rulings.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSince December 31, since the VERITAS Financial Statements Balance Sheet Date there 2002, KSB Bancorp has not occurred:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except conducted its business only in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contractshas not, other than in the ordinary course of business and consistent with past practicepractices and safe and sound banking practices:
A. Incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except deposits taken and federal funds purchased and current liabilities for trade or business obligations, none of which, individually or in the aggregate, result in a Material Adverse Change;
B. Discharged or satisfied any Lien or paid any obligation or liability, whether absolute or contingent, due or to become due;
C. Except as disclosed on Confidential Schedule 4.11C, declared or made any payment of dividends or other distribution to its shareholders, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its shares of capital stock or other securities;
D. Except as disclosed on Confidential Schedule 4.11D, issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereto;
E. Acquired any capital stock or other equity securities or acquired any equity or ownership interest in any bank, corporation, partnership or other entity (mexcept (i) through settlement of indebtedness, foreclosure, or the exercise of creditors’ remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any transfer liability from the business, operations or grant liabilities of such person);
F. Mortgaged, pledged or subjected to Lien any of its property, business or assets, tangible or intangible except (i) statutory liens not yet delinquent, (ii) consensual landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (iv) pledges of assets to secure public funds deposits, and (v) those assets and properties disposed of for fair value since the dates of the most recent KSB Bancorp Financial Statement or ▇▇▇▇▇▇ State Bank Call Report;
G. Sold, transferred, leased to others or otherwise disposed of any of its assets (except for assets disposed of for fair value) or canceled or compromised any debt or claim, or waived or released any right or claim (except pursuant to the settlement of litigation described in Section 4.11L) of material value;
H. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not constituting, or may reasonably be anticipated to result in, a right under Material Adverse Change covered by insurance), which, in any case or in the VERITAS IP Rightsaggregate, other than those may reasonably constitute a Material Adverse Change;
I. Disposed of, permitted to lapse, transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign license or KSB Bancorp Proprietary Right (as defined in Section 4.16) or modified any existing rights with respect thereto;
J. Except as disclosed on Confidential Schedule 4.11J, made any change in the ordinary course rate of businesscompensation, consistent with past practicecommission, except bonus, vesting or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to or for any grant of a right to source code or grant the benefit of any exclusive rights to of its shareholders, directors, officers, employees or agents, or entered into any VERITAS IP Rightsemployment or consulting contract or other agreement with any director, each officer or employee or adopted, amended in any material respect or terminated any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit-sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by it for the benefit of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterits directors, employees or former employees;
(n) K. Except for improvements or betterments relating to its properties, made any labor dispute withcapital expenditures or capital additions or betterments in excess of an aggregate of $25,000;
L. Instituted, had instituted against it, settled or charge of unfair labor practice byagreed to settle any litigation, action or proceeding before any member of the VERITAS Group (court or governmental body relating to its property other than routine individual grievances)collection suits instituted by it to collect amounts owed or suits in which the amount in controversy is less than $25,000;
M. Except as disclosed on Confidential Schedule 4.11M, any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than and except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any transaction, or entered into, modified or amended any contract or commitment;
N. Entered into or given any promise, assurance or guarantee of the Ancillary Agreements)payment, discharge or fulfillment of any undertaking or promise made by any person, firm or corporation;
O. Sold, or knowingly disposed of, or otherwise divested itself of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
P. Made any, or acquiesced with any, change in any accounting methods, principles or material practices except as required by GAAP or RAP; or
Q. Entered into any agreement or made any commitment whether in writing or otherwise to take any of the types of action described in subsections A. through P. above.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior to the date of set forth on Schedule 3.9, or as contemplated by this Agreement, since April 30, 2005, the VERITAS Financial Statements Balance Sheet Date Business has been conducted only in the ordinary course of business consistent with past practice and there has not occurredbeen no Material Adverse Change in the assets or Liability, or in the business or condition, financial or otherwise, or in the results of operations or prospects, of the Business. Without limiting the foregoing, except as contemplated by this Agreement, since April 30, 2005:
(a) No Business Entity has borrowed or guaranteed any change amount or event which could reasonably be expected incurred any material expenses or obligations of any kind (whether contingent or otherwise) related to have a Material Adverse Effect on VERITAS; providedthe Business, however, that in no event will a change except in the trading price ordinary course of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASbusiness consistent with past practice;
(b) No Business Entity has entered into any amendments material transactions or changes waived any material rights related to the Business, or entered into any transactions, nor waived any rights relating to the Business other than in the Certificate ordinary course of Incorporation or Bylaws of any member of the VERITAS Groupbusiness consistent with past practice;
(c) No Business Entity has increased the level of benefits under any damageemployee benefit plan, destruction the salary or other compensation (including severance) payable or to become payable to any employees of a Purchased Entity or loss Transferred Employee or obligated itself to pay any bonus or other additional salary or compensation to any such employee or Transferred Employee, other than, with respect to employees who are not officers, directors or senior managers of VERITAS assets not covered by insurancesuch Business Entity, which would have a Material Adverse Effect on VERITASin the ordinary course of business and consistent with past practice;
(d) No Business Entity has amended, rescinded or terminated (and not renewed) any redemptionmaterial Contract and no such material Contract has expired or terminated (and not been renewed);
(e) No Business Entity has made any capital expenditure (or series of related capital expenditures) related to the Business that is either material or not in the ordinary course of business consistent with past practice;
(f) No Business Entity has made any capital investment in, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants)loan to, or any declarationacquisition of the securities or assets of, setting any other person (or series of related capital investments, loans and acquisitions) related to the Business;
(g) No Business Entity has sold, transferred, disposed of, or agreed to sell, transfer, or dispose of, (i) any of its assets or properties related to the Business other than in the ordinary course of business consistent with past practice, or (ii) any Flow Business IP Assets, Flow Switzerland IP Assets (excluding any Intellectual Property included therein that is licensed from a third party), any Jointly Owned IP Asset, or except as contemplated by the Pre-Closing Transactions, any Intellectual Property of a Purchased Entity;
(h) No Business Entity has created or incurred, or discharged or satisfied, any material Encumbrance other than Permitted Encumbrances upon any of the assets or properties of any Purchased Entity or the Business;
(i) No Business Entity has made any material change in the manner of conducting the Business or changed its method of accounting or accounting practices with respect to the Business;
(j) No material asset or property owned by a Purchased Entity or otherwise used in the Business has been destroyed, damaged or otherwise lost (whether or not covered by insurance);
(k) No Business Entity has failed to repay any material obligation related to the Business when due;
(l) There has been no material revaluation by any Business Entity of any of the assets or Liability of the Business, including any material write-offs, material increases or decreases in any reserves or any material write-up of the value of inventory, property, plant, equipment or any other asset;
(m) No Purchased Entity has declared, set aside or payment of paid any dividend or other distribution or payment (whether in cash, stock or property) with respect to the capital stock or other equity securities of such Purchased Entity or made any redemption purchase or other acquisition of any member of the VERITAS Group orsecurities of such Purchased Entity, with respect or made any other payment to dividends or other distributions any equityholder of cash or property arising from the VERITAS Business such Purchased Entity in its capacity as an equityholder;
(en) any material increase in No Purchased Entity has issued or modification of the compensation or benefits payable by VERITAS or committed to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulationissue, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting other equity securities or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, obligations or any securities convertible into or exchangeable or exercisable for any such debt securitiescapital stock or other equity interests;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) There has been no amendment of any agreement by material term of any member outstanding security of any Purchased Entity;
(p) No Purchased Entity has settled any Action, and Seller has not settled any Action related to the VERITAS Group Business; and
(q) No Business Entity has entered into any commitment (contingent or otherwise) to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed set forth in SCHEDULE 3.11 of the Pubco Disclosure Schedule, since December 31, 2004, (i) the business of Pubco has been conducted in all material respects in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date ordinary course consistent with past practice and (ii) there has not occurredbeen:
(a) a material adverse change in the assets, liabilities, business, results of operations, condition (financial or otherwise) or prospects of Pubco, or any change event, occurrence or event development which has had or could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASPubco;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the of any shares of capital stock of Pubco, or any member of the VERITAS Group orrepurchase, with respect to dividends redemption or other distributions acquisition by Pubco of cash any Pubco securities;
(c) any incurrence or property arising from assumption by Pubco of any indebtedness for borrowed money (or any renewals, replacements, or extensions that increase the VERITAS Business aggregate commitments thereunder);
(d) any creation or assumption by Pubco of any material Lien on any material asset of Pubco;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than Person by Pubco;
(i) loans, advances any contract or capital contributions made in agreement entered into by Pubco on or prior to the ordinary course date hereof relating to any material acquisition or disposition of the business, and any assets or business or (ii) any modification, amendment, assignment, termination or relinquishment by Pubco of any contract, license or other loans right (including any insurance policy naming it as a beneficiary or a loss payable payee);
(g) any (i) grant of any severance or termination pay to any director, officer, employee, consultant or contractor of Pubco; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer, employee, consultant or contractor of Pubco; (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements; or (iv) increase in compensation, bonus or other benefits payable to directors, officers, employees, consultants or contractors of Pubco other than, in the case of clause (iv) only, increases prior to the date hereof in compensation, bonus or other benefits payable to employees, consultants or contractors of Pubco;
(h) any (i) making or revoking of any material election relating to Taxes, (ii) settlement or compromise of any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or (iii) change to any material methods of reporting income or deductions for federal income tax purposes;
(i) any capital expenditures in excess of $10,000 individually and advancesin excess of $25,000 in the aggregate;
(j) any lease, where license or grant to any Person of any rights in any of Pubco's assets or properties;
(k) any amendment of the aggregate amount articles of all such items outstanding at any time does not exceed $1,000,000incorporation or bylaws of Pubco;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS sufferance of any material damage, destruction or loss (whether or not covered by insurance) to any material assets of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;Pubco; and
(m) any transfer issuance, or grant authorization for issuance, of a right under the VERITAS IP Rightsany equity securities of Pubco, other than those transferred or granted except as otherwise provided in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 1 contract
Sources: Merger Agreement (Creative Solutions With Art, Inc.)
Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ VERITAS SEC Documents filed prior (a) Since June 30, 2006 to the date of this Agreement, the Seller and the Seller Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since the VERITAS Financial Statements Balance Sheet Date June 30, 2006, there has not occurred:
been (ai) any change in the financial condition, results of operations or event business of the Seller and any of the Seller Subsidiaries which could reasonably be expected to have has had a Seller Material Adverse Effect on VERITAS; providedEffect, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(cii) any damage, destruction to or loss with respect to any assets of VERITAS assets not covered by insurance, the Seller or any of the Seller Subsidiaries which would have has had a Seller Material Adverse Effect on VERITAS;
Effect, (diii) any redemptionchange by the Seller in its accounting methods, repurchase principles or other acquisition of shares practices, (iv) any revaluation by the Seller of any member of the VERITAS Group its assets in any material respect, (other than pursuant to arrangements with employees or consultants), or v) any declaration, declaration setting aside or payment of any dividend dividends or distributions in respect of shares of Seller Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to the capital stock acquisition of any member of the VERITAS Group or, with respect to dividends its securities or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of Seller Subsidiary, (vi) any increase in the VERITAS Groupwages, salaries, bonuses, compensation, pension, or other fringe benefits payable to any securities convertible into executive officer, employee, or exchangeable for director or any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group grant of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregateseverance or termination pay, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than except in the ordinary course of business consistent with past practice;
practices, (mvii) any transfer strike, work stoppage, slow down or grant of a right under other labor disturbance, or (viii) the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant execution of any exclusive rights to any VERITAS IP Rightscollective bargaining agreement, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, contract or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity agreement or proceeding by understanding with a labor union or representative thereof organization, or (ix) any union organizing activities.
(b) Neither Seller nor any Seller Subsidiary is a party to organize any VERITAS Employees joint marketing or other affinity marketing program with a third party.
(c) The Seller and Seller Subsidiaries own, or are validly licensed or otherwise have the enforceable right to use, in each case free and clear of all Liens except Permitted Liens, all Intellectual Property used in the conduct of the business of the Seller and Seller Subsidiaries as currently conducted that is material to the business of the Seller and the Seller Subsidiaries taken as a whole (the “Seller Intellectual Property”). Neither the Seller nor any Seller Subsidiary has entered into any agreements granting sole or exclusive right to any material Intellectual Property. Except as would not reasonably be expected to have a Seller Material Adverse Effect, all patents and patent applications, trademark registration and applications for registration and domain named owned by the Seller or Seller Subsidiaries are subsisting and unexpired and, to Seller’s Knowledge, valid. No claims are pending or, to VERITAS' Seller’s Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor unionthreatened, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through challenging the ownership, enforceability, validity, or use by the Seller or any Seller Subsidiary of any Seller Intellectual Property, or (nb) alleging that the Seller or any Seller Subsidiary is violating, misappropriating or infringing or otherwise adversely affecting the rights of any person with regard to any Seller Intellectual Property or the use of any Seller Intellectual Property (including any claim that the Seller or any Seller Subsidiary should license or refrain from using any Intellectual Property of a third party) other than claims that would not be reasonably expect to have a Seller Material Adverse Effect. Except as would not reasonably be expect to have a Seller Material Adverse Effect, to the Knowledge of Seller, (i) no Person is infringing, violating, or misappropriating the rights of the Seller or any Seller Subsidiary with respect to any Seller Intellectual Property, and (ii) the operation of the business of the Seller and the Seller Subsidiaries as currently conducted does not violate, misappropriate, or infringe the Intellectual Property of any other Person. Except as would not reasonably be expected to have a Seller Material Adverse Affect, the Seller and the Seller Subsidiaries take and have taken commercially reasonable actions to maintain and preserve the material Intellectual Property used in the conduct of their business as currently conducted. The Seller and the Seller Subsidiaries are in actual possession of or have necessary control over the source code and object code for all material software that they own or propose to own (the “Owned Software”). None of the Owned Software is subject to any contract or other obligation that has or would require the Seller or a Seller Subsidiary to divulge to any third party any source code or trade secret that is part of Owned Software, to license Owned Software for the purpose of making derivative works, or to redistribute Owned Software to any third party at no or minimal charge. Except as would not be material to the business of the Seller and the Seller Subsidiaries taken as a whole, the Seller and the Seller Subsidiaries maintain policies and procedures regarding data security and privacy that are commercially reasonable and, in any event, in compliance with all their obligations to their customers and under applicable laws, statutes, standards, ordinances, codes, rules, and regulations (the “Legal Requirements”). Except as would not be material to the business of the Seller and the Seller Subsidiaries taken as a whole, there have been no security breaches relating to, violations of any security policy regarding or any unauthorized access or unauthorized use of any data used in the business of the Seller and the Seller Subsidiaries. To the Seller’s Knowledge, there have been no events of series of events involving the Seller or Seller Subsidiaries that have or would reasonably be expected to trigger a consumer personal information privacy breach reporting requirement. Except as would not be material to the business of the Seller and the Seller Subsidiaries taken as a whole, the use and dissemination of any and all data and information concerning individuals by their businesses is in compliance with all applicable privacy policies, terms of use, customer agreements, and Legal Requirements. The transactions contemplated by this Agreement to be consummated hereunder as of the Closing Date will not violate any privacy policy, terms of the use, customer agreements or Legal Requirements relating to the Ancillary Agreements)use, dissemination or transfer of any such data or information.
Appears in 1 contract
Absence of Certain Changes or Events. Except as disclosed in the set forth on Schedule ------------------------------------ VERITAS SEC Documents filed prior to -------- 4.9, since the date of this Agreementthe Latest Balance Sheet, each of the Seller, the Company ---- and the Company Subsidiaries has conducted its business only in the ordinary course consistent with past custom and practices. Except as set forth on Schedule 4.9 (setting forth, without limitation, payments of accounts receivable ------------ to Members and employees of the Company or Seller as bonus compensation or otherwise), since the VERITAS Financial Statements date of the Latest Balance Sheet Date Sheet, there has not occurredbeen any:
(a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price operations, condition (financial or otherwise), operating results, assets, liabilities, employee or client relations or prospects of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASthe Seller, the Company or any Company Subsidiary;
(b) damage, destruction or loss of any amendments property owned by the Seller, the Company or changes any Company Subsidiary, or used in the Certificate of Incorporation or Bylaws of any member operation of the VERITAS GroupBusiness, whether or not covered by insurance, having a replacement cost or fair market value in excess of five percent (5%) of the amount of net property, plant and equipment shown on the Latest Balance Sheet, in the aggregate;
(c) voluntary or involuntary sale, transfer, surrender, cancellation, abandonment, waiver, release or other disposition of any damagekind by the Seller, destruction to the Company or loss any Company Subsidiary of VERITAS assets not covered by insuranceany right, which would have a Material Adverse Effect on VERITASpower, claim, debt, except the collection of accounts and billing of work-in-process, each in the ordinary course of business consistent with past custom and practices;
(d) any redemptionstrike, repurchase picketing, boycott, work stoppage, union organizational activity, allegation, charge or complaint of employment discrimination or other acquisition labor dispute or similar occurrence that is reasonably expected to adversely affect the Seller, the Company, a Company Subsidiary or the Business;
(e) loan or advance by the Seller, the Company or any Company Subsidiary to any Person, other than as a result of shares services performed for, or expenses properly and reasonably advanced for the benefit of, customers in the ordinary course of business consistent with past custom and practices;
(f) notice (formal or otherwise) of any member of the VERITAS Group liability, potential liability or claimed liability relating to environmental matters;
(other than pursuant to arrangements with employees or consultants), or any g) declaration, setting aside aside, or payment of any dividend or other distribution (whether in cash, respect of the Seller's or the Company's capital stock or property) with respect to other equity interests or any direct or indirect redemption, purchase, or other acquisition of the Seller's or the Company's or any Company Subsidiary's capital stock or other equity interests, or the payment of principal or interest on any member note, bond, debt instrument or debt to any Affiliate (as defined in Section 15.4) of the VERITAS Group orSeller, the Company or any ------------ Company Subsidiary, except bonuses and distributions to employees and Members disclosed to CenterPoint in writing that are consistent with respect to dividends the Company's past custom and practices or other distributions of cash or property arising from the VERITAS Business as otherwise contemplated by this Agreement;
(eh) incurrence by the Seller, the Company or any material increase Company Subsidiary of debts, liabilities or obligations except current liabilities incurred in connection with or modification of the compensation for services rendered or benefits payable by VERITAS or to become payable to the VERITAS Employees, except goods supplied in the ordinary course of the business, business consistent with past practice custom and necessary to respond to third party solicitation practices, liabilities on account of VERITAS Employeestaxes and governmental charges (but not penalties, interest or fines in respect thereof), and obligations or liabilities incurred by virtue of the execution of this Agreement;
(fi) issuance by the Seller, the Company or any Company Subsidiary of any notes, bonds, or other than as required debt securities or any equity securities or securities convertible into or exchangeable for any equity securities;
(j) entry by applicable statute the Seller, the Company or governmental regulationany Company Subsidiary into, or amendment or termination of, any material increase in or modification of any VERITAS Group Benefit Arrangement (includingcommitment, but not limited tocontract, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practiceagreement, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assetstransaction, other than in the ordinary course of business and other than expiration of contracts in accordance with their terms;
(k) loss or threatened loss of, or any material reduction or threatened material reduction in revenues from, any client of the businessSeller, the Company or any Company Subsidiary that accounted for revenues during the last twelve months in excess of one percent (1%) of the consolidated net revenues of the Seller, the Company and the Company Subsidiaries, or change in the relationship of the Seller, the Company or any Company Subsidiary with any client or Governmental Authority that is reasonably expected to adversely affect the Seller, the Company, any Company Subsidiary or the Business;
(l) change in accounting principles, methods or practices (including, without limitation, any change in depreciation or amortization policies or rates) utilized by the Seller, the Company or any Company Subsidiary;
(m) discharge or satisfaction by the Seller, the Company or any Company Subsidiary of any material liability or encumbrance or payment by the Seller, the Company or any Company Subsidiary of any material obligation or liability, other than current liabilities paid in the ordinary course of its business consistent with past practicecustom and practices;
(hn) sale, lease or other disposition by the Seller, the Company or any alteration in any term Company Subsidiary of any outstanding capital stock tangible assets (having an aggregate replacement cost or rights to acquire capital stock fair market value in excess of any member five percent (5%) of the VERITAS Groupamount of net property, including, but not limited to, acceleration of plant and equipment shown on the vesting or any change in the terms of any outstanding stock options;
(iLatest Balance Sheet) other than in the ordinary course of business, consistent with past practiceor the sale, (A) assignment or transfer by the Seller, the Company or any incurrenceCompany Subsidiary of any trademarks, assumption service marks, trade names, corporate names, copyright registrations, trade secrets or guarantee by other intangible assets, or disclosure of any member proprietary confidential information of the VERITAS Group Seller, the Company or any Company Subsidiary to any Person other than an employee, agent, attorney, accountant or other representative of the Seller or the Company that has agreed to maintain the confidentiality of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesproprietary confidential information;
(jo) capital expenditures or commitments therefor by the Seller, the Company or any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset Company Subsidiary in excess of $2,500,000 50,000 individually or $100,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(kp) mortgage, pledge or other encumbrance of any making by any member asset of the VERITAS Group Seller, the Company or any Company Subsidiary or creation of any loaneasements, advance Liens or capital contribution to other interests against or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of on any of the VERITAS ContractsReal Property (as defined in Section 4.14.1); --------------
(q) adoption, other than amendment or termination of any Employee Plan (as defined in Section 4.17.5(a)) or increase in the ordinary course benefits provided under ----------------- any Employee Plan, or promise or commitment to undertake any of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted foregoing in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASfuture; or
(or) any agreement by any member of the VERITAS Group to take any of the actions described an occurrence or event not included in the preceding clauses (a) through (nq) (other than that has resulted or, based on information of which the transactions contemplated by this Agreement Seller or the Ancillary Agreements)Company has Knowledge, is reasonably expected to result in a Company Material Adverse Effect.
Appears in 1 contract
Absence of Certain Changes or Events. Except Other than as set forth in Section 3.10 to the Company Disclosure Schedule or as disclosed in the ------------------------------------ VERITAS Company SEC Documents filed with the SEC prior to the date of this Agreementhereof, since the VERITAS Financial Statements Balance Sheet Date December 31, 1997, there has not occurred:
been no material adverse change, and no change except in the Ordinary Course of Business, in the business, operations, condition (financial or otherwise), Assets or liabilities of the Company or any Subsidiary. Except as set forth in Section 3.10 to the Company Disclosure Schedule or as disclosed in the Company SEC Documents filed with the SEC prior to the date hereof, since December 31, 1997, the Company and the Subsidiaries have conducted their respective businesses substantially in the manner theretofore conducted and only in the Ordinary Course of Business, and neither the Company nor any Subsidiary has (a) any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) incurred any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or insurance with respect to any material Assets of the VERITAS EmployeesCompany or of any such Subsidiary; (b) issued any capital stock or other equity securities or granted any options, warrants or other rights calling for the issuance thereof; (c) issued any bonds or other long-term debt instruments, granted any options, warrants or other rights calling for the issuance thereof, or borrowed any funds; (d) incurred, or become subject to, any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown), except current liabilities incurred in the Ordinary Course of Business; (e) discharged or satisfied any Encumbrance or paid any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown) other than current liabilities shown in the Unaudited Balance Sheets (as defined in Section 6.08) and current liabilities incurred since December 31, 1997 in the Ordinary Course of Business; (f) declared or made payment of, or set aside for payment, any dividends or distributions of any Assets, or purchased, redeemed or otherwise acquired any of its capital stock, any securities convertible into capital stock, or any other securities; (g) mortgaged, pledged or subjected to any Encumbrance any of its Assets; (h) sold, exchanged, transferred or otherwise disposed of any of its Assets, or canceled any debts or claims, except in each case in the Ordinary Course of Business; (i) written down the value of any Assets or written off as uncollectible any debt, notes or accounts receivable, except to the extent previously reserved against in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS EmployeesFinancial Statements and not material in amount, and except for write-downs and write-offs in the Ordinary Course of Business, none of which, individually or in the aggregate, are material; (iij) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) entered into any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, transactions other than in the ordinary course Ordinary Course of Business; (k) increased the businessrate of compensation payable, consistent with past practice;
or to become payable, by it to any of its officers, employees, agents or independent contractors over the rate being paid to them on December 31, 1997, except for any increase in the rate of compensation payable, or to become payable, by it in the Ordinary Course of Business to employees who are not directors or executive officers; (hl) made or permitted any alteration in any term amendment or termination of any outstanding capital stock material Agreement to which it is a party; (m) through negotiation -19- or rights otherwise made any commitment or incurred any liability to acquire capital stock any labor organization; (n) made any accrual or arrangement for or payment of bonuses or special compensation of any member kind to any director, officer or employee, except for any accrual or arrangement for or payment of the VERITAS Group, including, but not limited to, acceleration of the vesting bonuses or any change special compensation in the terms Ordinary Course of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, (A) any incurrence, assumption Business to employees who are not directors or guarantee by any member of the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000officers; (Bo) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities indirectly paid any severance or termination pay in excess of two months' salary to any member of the VERITAS Group, officer or any securities convertible into or exchangeable for any such debt securities;
(j) any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset employee with an annual salary in excess of $2,500,000 60,000; (p) made capital expenditures, or entered into commitments therefor, not provided for in the Company's July 1998 CLEC Facilities Expansion Plan (a copy of which has been furnished by the Company to Acquiror) or, if applicable, the Company's subsequent capital budget (which capital budget shall have been approved by Acquiror as provided in Section 5.01(i)), except for capital expenditures permitted by Section 5.01; (q) made any change in any method of accounting or accounting practice except as required by GAAP; (r) entered into any transaction of the type described in Section 3.19; (s) made any charitable contributions or pledges exceeding $10,000 individually or $100,000 in the aggregate, other than ; or (t) made any Agreement to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of do any of the VERITAS Contractsforegoing. At the Closing, other than the Company shall deliver to Acquiror an updated Section 3.10 to the Company Disclosure Schedule in accordance with the ordinary course provisions of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)6.05.
Appears in 1 contract
Sources: Merger Agreement (Dakota Telecommunications Group Inc)
Absence of Certain Changes or Events. Except as disclosed Since December 31, 2010, Seller and each of its Subsidiaries have conducted their respective businesses in the ------------------------------------ VERITAS SEC Documents filed prior to ordinary course consistent with their past practices and, except as set forth in Section 3.7 of the date of this AgreementSeller Disclosure Schedule, since the VERITAS Financial Statements Balance Sheet Date there has not occurredbeen:
(a) any change in the financial condition, properties, assets, liabilities, business or event which could results of their operations or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development on or prior to December 31, 2010) to the Knowledge of Seller which, individually or in the aggregate, has had, or would reasonably be expected to have have, a Seller Material Adverse Effect on VERITAS; provided, however, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASEffect;
(b) any amendments material Encumbrance placed on any of the properties of Seller or changes any of its Subsidiaries, other than Permitted Encumbrances or Encumbrances incurred in the Certificate of Incorporation or Bylaws of any member course of the VERITAS Groupordinary operation of Seller or its Subsidiaries, as applicable, consistent with past practice;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the any shares of capital stock of Seller or any member of the VERITAS Group or, with respect to its Subsidiaries (except for dividends or other distributions by any direct or indirect wholly owned Subsidiary to Seller or to any wholly owned Subsidiary of cash Seller), or property arising from the VERITAS Business any repurchase, redemption or other acquisition by Seller or any of its Subsidiaries of any outstanding shares of capital stock or other securities of Seller or any of its Subsidiaries;
(d) any material change in any method of accounting or accounting practice by Seller or any of its Subsidiaries;
(e) (i) any material increase in or modification of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, its officers or management employees (except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, consistent with past practice;
(h) any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than increases in the ordinary course of business, consistent with past practice, ) or (Aii) any incurrenceestablishment, assumption adoption, entry into or guarantee amendment of any collective bargaining, bonus, profit sharing, thrift, compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by any member applicable Laws, including Section 409A of the VERITAS Group Code;
(f) (i) any claim of unfair labor practices involving Seller or any debt of any personits Subsidiaries, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (Cii) issuance any bonus payment or sale arrangement made to or with any of options Seller’s or other rights to acquire from the VERITAS Groupany of its Subsidiaries’ employees;
(g) any resignation, directly termination or indirectly, debt securities removal of any member of the VERITAS Group, senior management or any securities convertible key supervisory personnel of Seller or any of its Subsidiaries or material loss of personnel of Seller or any of its Subsidiaries or material change in the terms and conditions of the employment of the senior management or key supervisory personnel of Seller or any of its Subsidiaries;
(h) any Tax election; any entry into a Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or exchangeable closing agreement with respect to Taxes; any settlement or compromise of any Tax liability, claim, notice, audit report or assessment; any surrender of any right to claim a Tax refund; or any consent to any extension or waiver of any statute of limitations relating to Taxes which would have the effect of materially increasing the Tax liability of Seller or its Subsidiaries for any such debt securitiestaxable period occurring after the Closing Date;
(i) any amendment to the governing documents of Seller or any of its Subsidiaries;
(j) any creation sale, assignment, transfer or assumption by any member of the VERITAS Group license of any Encumbrance (Intellectual Property or other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregateintangible assets owned by Seller or its Subsidiaries, other than licenses to refinance a liability reflected in the VERITAS Financial Statements customers in the ordinary course of business;
(k) any making by purchase, sale or other disposition, or any member of agreement or other arrangement for the VERITAS Group purchase, sale or other disposition, of any loanmaterial tangible properties or assets of Seller or any of its Subsidiaries, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) entered into, amended or terminated any amendment oflease, relinquishmentcontract, termination agreement, commitment or non- renewal by VERITAS any other transaction providing for payments in excess of $100,000 in the aggregate or any Seller Contract;
(m) any payment or discharge of a material Encumbrance or liability of Seller or any of its Subsidiaries which was not shown on the VERITAS Contracts, other than balance sheet included in the 2010 Financial Statements or incurred in the ordinary course of business consistent with past practicethereafter;
(mn) any transfer other transaction entered into by Seller or grant any of a right under the VERITAS IP Rights, its Subsidiaries other than those transferred or granted transactions in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute with, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; or
(o) any agreement by any member of the VERITAS Group to take do any of the actions described in the preceding clauses (a) through (n) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)foregoing.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Absence of Certain Changes or Events. Except as disclosed on Confidential Schedule 4.10, since December 31, 2011, FNB has conducted its business only in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this Agreement, since the VERITAS Financial Statements Balance Sheet Date there ordinary course and has not occurrednot:
(a) Incurred any change obligation or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; providedliability, howeverabsolute, that in no event will a change in the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;
(b) any amendments accrued, contingent or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damageotherwise, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business ;
(e) any material increase in or modification of the compensation or benefits payable by VERITAS due or to become payable to the VERITAS Employees, except in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assetsdue, other than in the ordinary course of business and consistent with past practices and safe and sound banking practices;
(b) Discharged or satisfied any Lien or paid any obligation or liability, whether absolute or contingent, due or to become due, other than in the ordinary course of business and consistent with past practices and safe and sound banking practices;
(c) Declared or made any payment of dividends or other distribution to its shareholders, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its shares of capital stock or other securities;
(d) Issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereto;
(e) Acquired any capital stock or other equity securities or acquired any ownership interest in any Entity (except (i) through settlement of indebtedness, foreclosure, or the exercise of creditors’ remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any liability from the business, consistent with past practiceoperations or liabilities of such Person);
(hf) Mortgaged, pledged or subjected to Lien any alteration of its property, business or assets, tangible or intangible except (i) statutory liens not yet delinquent, (ii) consensual landlord liens, (iii) minor defects and irregularities in any term title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (iv) pledges of any outstanding capital stock or rights assets to acquire capital stock secure public funds deposits, and (v) those assets and properties disposed of any member for fair value since the date of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock optionsmost recent Call Report;
(ig) Sold, transferred, leased to others or otherwise disposed of any of its assets (except for assets disposed of for fair value) or canceled or compromised any debt or claim other than in the ordinary course of business, consistent with past practiceor waived or released any right or claim of material value;
(h) Terminated, (A) canceled or surrendered, or received any incurrence, assumption notice of or guarantee by any member threat of the VERITAS Group termination or cancellation of any debt of any personcontract, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options lease or other agreement or suffered any damage, destruction or loss which, individually or in the aggregate, may reasonably constitute a Material Adverse Change;
(i) Disposed of, permitted to lapse, transferred or granted any rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Groupunder, or entered into any securities convertible into settlement regarding the breach or exchangeable for infringement of, any such debt securitieslicense or Intellectual Property or modified any existing rights with respect thereto;
(j) Made any creation change in the rate of compensation, commission, bonus, vesting or assumption by other direct or indirect remuneration payable, or paid or agreed or orally promised to pay any member of bonus, extra compensation, pension or severance or vacation pay, to or for the VERITAS Group benefit of any Encumbrance of its shareholders, directors, officers, employees or agents, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended in any material respect or terminated any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit-sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess incentive, welfare or employee benefit plan or agreement maintained by it for the benefit of $2,500,000 in the aggregateits directors, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of businessemployees or former employees;
(k) Except for improvements or betterments relating to Properties, made any making by any member of the VERITAS Group of any loan, advance capital expenditures or capital contribution to additions or investment betterments in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course excess of the business, and (ii) other loans and advances, where the an aggregate amount of all such items outstanding at any time does not exceed $1,000,00010,000;
(l) Instituted, had instituted against it, settled or agreed to settle any amendment ofAction before any Governmental Authority relating to its property other than routine collection suits instituted by it to collect amounts owed or suits in which the amount in controversy is less than $10,000;
(m) Except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, relinquishmententered into any transaction, termination or non- renewal by VERITAS of entered into, modified or amended any of the VERITAS Contractscontract or commitment, other than in the ordinary course of business and consistent with past practicebusiness practices and prudent banking practices;
(mn) Entered into or given any transfer promise, assurance or grant guarantee of a right under the VERITAS IP Rightspayment, discharge or fulfillment of any undertaking or promise made by any Person, other than those transferred or granted in the ordinary course of business, business and consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letterbusiness practices and prudent banking practices;
(no) any labor dispute withSold, disposed of, or charge of unfair labor practice by, any member otherwise divested itself of the VERITAS Group (other than routine individual grievances)ownership, possession, custody or control, of any activity corporate books or proceeding by a labor union or representative thereof to organize records of any VERITAS Employees ornature that, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to be represented by such labor union, where such dispute, in accordance with sound business practice, activitynormally are retained for a period of time after their use, proceedingcreation or receipt, except at the end of the normal retention period;
(p) Made any, or c ampaign would have acquiesced with any, change in any accounting methods, principles or material practices except as required by GAAP or RAP;
(q) Sold (provided, however, that payment at maturity is not deemed a Material Adverse Effect on VERITASsale) or purchased any investment securities having an aggregate principal amount of $250,000 or more;
(r) Made, renewed, extended the maturity of, or altered any of the material terms of any loan to any single borrower and his related interests in excess of the principal amount of $250,000; or
(os) Entered into any agreement by or made any member of the VERITAS Group commitment whether in writing or otherwise to take any of the actions types of action described in the preceding clauses subsections (a) through (nr) (other than the transactions contemplated by this Agreement or the Ancillary Agreements)above.
Appears in 1 contract
Absence of Certain Changes or Events. Except Since January 1, 2002, except as disclosed set forth on Schedule 3.6, each of the Companies has conducted its business only in the ------------------------------------ VERITAS SEC Documents filed prior to the date ordinary course of this Agreement, since the VERITAS Financial Statements Balance Sheet Date business and consistent with past practice and there has not occurred:
(a) been any change Material Adverse Effect or any development or event which could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on VERITAS; providedEffect. Without limiting the foregoing, howeverexcept as set forth in Schedule 3.6 and except for the sale of Arvida Mortgage to the Mortgage Purchaser, that in no event will a change in since January 1, 2002, none of the trading price of VERITAS Common Stock be deemed a Material Adverse Effect on VERITAS;Companies has:
(ba) any amendments or changes in the Certificate of Incorporation or Bylaws of any member of the VERITAS Group;
(c) any damagedeclared, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;
(d) any redemption, repurchase or other acquisition of shares of any member of the VERITAS Group (other than pursuant to arrangements with employees or consultants), or any declaration, setting set aside or payment of paid any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock or property) with respect to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business interests;
(ei) sold, leased, transferred or disposed of any material increase in assets or modification rights, other than assets or rights disposed of the compensation or benefits payable by VERITAS or to become payable to the VERITAS Employees, except in the ordinary course of the business, business consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
not individually or in the aggregate material, (fii) other than as required by applicable statute or governmental regulation, incurred any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding Lien upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employeesits assets, other than Permitted Liens, (iiii) in the ordinary course of the business, consistent with past practice, acquired or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) leased any sale of a material amount of the VERITAS Assets, assets or any acquisition by any member of the VERITAS Group of a material amount of assets, rights other than in the ordinary course of business consistent with past practice that individually or in the businessaggregate would not be material;
(c) paid, discharged or satisfied any liability, obligation or Lien, other than payment, discharge or satisfaction of (i) Indebtedness as it matured and became due and payable or (ii) liabilities, obligations or Liens in the ordinary course of business consistent with past practice;
(hd) changed any alteration in any term of any outstanding capital stock or rights to acquire capital stock of any member of the VERITAS Groupaccounting or tax principles, including, but not limited to, acceleration of the vesting practices or any change in the terms of any outstanding stock optionsmethods or changed reserve policies or materially changed reserves;
(i) made any change in the compensation payable or to become payable to any of its officers, directors, employees, agents, consultants or sales associates (other than general increases in wages or salaries to employees who are not officers or directors in the ordinary course consistent with past practice), or to Persons providing management services, (ii) entered into or amended any employment, severance, consulting, termination or other agreement or employee benefit plan or made any loans to any of its officers, directors, employees, Affiliates, agents, consultants or sales associates or (iii) made any change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(i) made any accrual or commitment for future payment of any pension, retirement allowance, unused vacation days or other employee benefit to any officer, director, employee, sales associate or Affiliate, except payments and accruals made in the ordinary course consistent with past practice; (ii) adopted any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement, or made any payments or grants in relation to the foregoing other than in the ordinary course consistent with past practice; or (iii) amended in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(g) other than compensation or advances of business, expenses in the ordinary course consistent with past practice, made any payments, loans, advances or other distributions to, or entered into any transaction, agreement or arrangement with, any of its Affiliates, officers, directors, employees, agents, consultants or sales associates, stockholders or their Affiliates;
(Ah) made or committed the Company to make any incurrencecapital expenditures, assumption except as set forth in the 2002 business plan (set forth on Schedule 3.6(h)) and otherwise in the ordinary course consistent with past practice not in excess of $25,000 individually, or guarantee by $100,000 in the aggregate;
(i) settled or compromised any member of the VERITAS Group Tax liability or agreed to any adjustment of any debt of Tax attribute or made any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights election with respect to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesTaxes;
(j) made any creation change in its working capital practices generally, including accelerating any collections of cash or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregate, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of businessaccounts receivable or deferring payments or accruals;
(k) incurred any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a material liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(l) had a judgment entered or settled any Litigation resulting in a loss, payment or other cost, after receipt of insurance payments, in excess of $25,000 individually, or $100,000 in the aggregate;
(m) altered through merger, liquidation, reorganization, restructuring or in any transfer other material fashion its corporate structure or grant of a right under the VERITAS IP Rights, other than those transferred ownership or granted amended its Organizational Documents in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Lettermaterial respect;
(n) entered into or amended in an adverse manner any labor dispute withmaterial agreement which had non-competition, geographical restriction or charge of unfair labor practice by, any member of similar covenants relating to the VERITAS Group (other than routine individual grievances), any activity Business or proceeding by a labor union or representative thereof to organize any VERITAS Employees or, to VERITAS' Knowledge, any campaign being conducted to solicit authorization from VERITAS Employees to that otherwise would be represented by such labor union, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITASmaterial; or
(o) any agreement by any member of the VERITAS Group agreed to take any of the foregoing actions described in or any action which would reasonably be expected to prevent or delay the preceding clauses (a) through (n) (other than consummation of the transactions contemplated by this Agreement or the Ancillary Agreements)Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (St Joe Co)
Absence of Certain Changes or Events. Except as disclosed described in the ------------------------------------ VERITAS SEC Documents filed prior to the date of this AgreementSeller Disclosure Schedule, since the VERITAS Financial Statements Balance Sheet Date there has not occurredDate:
(a) there has not been any change or event which could reasonably be expected to have a Material Adverse Effect on VERITAS; provided, however, that in no event will a material adverse change in the trading price condition (financial or otherwise), operations, prospects or results of VERITAS Common Stock be deemed a Material Adverse Effect on VERITASoperations of the Business or of Seller;
(b) any amendments Seller has neither amended nor changed, nor (except as contemplated by the Agreement and the name change to be affect in association therewith) proposed to amend or changes change, its Charter Documents in a manner that could be expected to delay the Certificate of Incorporation or Bylaws of any member consummation of the VERITAS Grouptransactions contemplated by this Agreement;
(c) any damage, destruction to or loss of VERITAS assets not covered by insurance, which would have a Material Adverse Effect on VERITAS;[intentionally omitted]
(d) Seller has not (i) increased or modified the compensation or benefits payable or to become payable by Seller to any redemptioncurrent or former directors, repurchase employees, consultants or other acquisition of shares of any member contractors of the VERITAS Group Business, (other than pursuant to arrangements ii) increased or modified any Benefit Plan made to, for or with employees any current or consultants)former directors, employees, consultants or contractors of the Business, or (iii) entered into any declarationemployment, setting aside severance or payment of any dividend or other distribution (whether in cash, stock or property) with respect termination agreement Related to the capital stock of any member of the VERITAS Group or, with respect to dividends or other distributions of cash or property arising from the VERITAS Business Business;
(e) Seller has not sold, leased, transferred or assigned any material increase in property or modification of the compensation or benefits payable by VERITAS or to become payable assets Related to the VERITAS EmployeesBusiness, except for (i) the sale of Inventory, (ii) the grant of non-exclusive Out-Bound Licenses, and (iii) the sale of obsolete Equipment, in each case in the ordinary course of the business, consistent with past practice and necessary to respond to third party solicitation of VERITAS Employees;
(f) other than as required by applicable statute or governmental regulation, any material increase in or modification of any VERITAS Group Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) that will become binding upon Newco upon consummation of the transactions contemplated herein, for or with respect to any of the VERITAS Employees, other than (i) in the ordinary course of the business, consistent with past practice, or to respond to third party solicitation of VERITAS Employees, and (ii) if after the date of this Agreement, which is authorized, if required, pursuant to Section 5.3 below;
(g) any sale of a material amount of the VERITAS Assets, or any acquisition by any member of the VERITAS Group of a material amount of assets, other than in the ordinary course of the business, Business consistent with past practice;
(f) Seller has not incurred, assumed or guaranteed any Indebtedness Related to the Business;
(g) Seller has not mortgaged, pledged or subjected to Liens any assets, properties or rights Related to the Business, except for Liens arising under lease financing arrangements existing as of the Balance Sheet Date and Permitted Liens;
(h) Seller has not entered into, amended, modified, canceled or waived any alteration in rights under, any term of any outstanding capital stock Material Contract and no Material Contract has been terminated or rights to acquire capital stock of any member of the VERITAS Group, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock optionscancelled;
(i) other than in Seller has not taken any action outside the ordinary course of business, consistent with past practice, the Business (A) any incurrence, assumption or guarantee except and to the extent contemplated by any member of this Agreement and the VERITAS Group of any debt of any person, other than any member of the VERITAS Group, for borrowed money in an amount exceeding $2,500,000; (B) issuance or sale by any member of the VERITAS Group of any securities convertible into or exchangeable for their respective debt securities; or (C) issuance or sale of options or other rights to acquire from the VERITAS Group, directly or indirectly, debt securities of any member of the VERITAS Group, or any securities convertible into or exchangeable for any such debt securitiesAncillary Agreements);
(j) There has not been, in connection with the Business, any creation or assumption by any member of the VERITAS Group of any Encumbrance (other than VERITAS Permitted Encumbrances) on any VERITAS Asset in excess of $2,500,000 in the aggregatelabor dispute, other than to refinance a liability reflected in the VERITAS Financial Statements in the ordinary course of business;
(k) any making by any member of the VERITAS Group of any loan, advance or capital contribution to or investment in any person other than to refinance a liability reflected in the VERITAS Financial Statements and other than (i) loans, advances or capital contributions made in the ordinary course of the business, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $1,000,000;
(l) any amendment of, relinquishment, termination or non- renewal by VERITAS of any of the VERITAS Contracts, other than in the ordinary course of business consistent with past practice;
(m) any transfer or grant of a right under the VERITAS IP Rights, other than those transferred or granted in the ordinary course of business, consistent with past practice, except for any grant of a right to source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in Section 3.09(m) of the VERITAS Disclosure Letter;
(n) any labor dispute withindividual grievances, or charge of unfair labor practice by, any member of the VERITAS Group (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any VERITAS Employees oremployees of the Business;
(k) Seller has not committed any violation of, or conflict with, any applicable Law or any Business Authorization;
(l) Seller has not agreed, or entered into any arrangement, to VERITAS' Knowledgetake any action which, any campaign being conducted if taken prior to solicit authorization from VERITAS Employees to be represented by such labor unionthe date hereof, where such dispute, practice, activity, proceeding, or c ampaign would have a Material Adverse Effect on VERITAS; ormade any representation or warranty set forth in this Article IV untrue or incorrect as of the date when made;
(m) There has not been any material damage, destruction or loss with respect to the Purchased Assets, whether or not covered by insurance;
(n) Seller has not made any change in the accounting practices Related to the Business;
(o) Seller has not made any agreement by Tax election, changed its method of Tax accounting or settled any member of claim for Taxes, in each case Related to the VERITAS Group Business; and
(p) Seller has not agreed, whether in writing or otherwise, to take do any of the actions described in foregoing (except and to the preceding clauses (a) through (n) (other than the transactions extent contemplated by this Agreement or and the Ancillary Agreements).
Appears in 1 contract