Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice.
Appears in 3 contracts
Sources: Merger Agreement (Henkel Acquisition Corp Ii), Merger Agreement (Dep Corp), Merger Agreement (Dep Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof expressly permitted or in Section 4.04 of the Disclosure Lettercontemplated by this Agreement, since July December 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with and the negotiation and execution and delivery of this AgreementCompany has not suffered a Company Material Adverse Effect, and (iii) since December 31, 2009 there has not been (ai) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Shares Company or any repurchaseof its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or any other securities inof the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other ownership interests insecurities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries; (b) any entry into any employment agreement , whether or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable not covered by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit planthat would have a Company Material Adverse Effect, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (ev) any change by the Company in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by changes a change in United States generally accepted accounting principles; GAAP or (fvi) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or except with respect to such employees; (g) any revaluation by depreciation and amortization of the assets of the Company or any of its Subsidiaries Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceincome Tax liability.
Appears in 3 contracts
Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 4.06 of the Disclosure Letter, since July May 31, 19972000, (ia) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (iib) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with for the negotiation and execution and delivery of this Agreement, Agreement and (iiic) there has not been (ai) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock (except any obligation of the Company under the Stock Option Plans to accept Shares in connection with the exercise of Existing Stock Options, including in satisfaction of withholding tax obligations) or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; Subsidiaries or any amendment (bor agreement to amend) the terms of any such shares, securities or ownership interests), (ii) any entry into any employment agreement employment, change in control, retention, incentive or deferred compensation or severance compensation agreement withagreement, plan or arrangement with or for the benefit of, or any increase in the rate or modification in the terms (including any acceleration of the right to receive or the timing of payment), ) of any compensation payable or to become payable by the Company or any of its Subsidiaries to, any of their respective directors, officers or employees, except base salary, guaranteed draw or hourly wage increases to employees who are not officers members of the executive committee of the Company or directors occurring of the Company that have been granted in the ordinary course of business in accordance with its customary past practices; , (ciii) any increase in the rate of compensation or benefits payable or accruing under, or, modification of the terms (including any acceleration of the right to receive payment) of of, any existing Plan (as hereinafter defineddefined in Section 4.09) (except as disclosed in the Company SEC Reports) or any other bonusadoption or implementation of any new Plan, severance, insurance, pension or other employee benefit plan, payment or arrangement made toin any such case, for or with any such directors, officers or employees; , (div) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; , (ev) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; GAAP, (fvi) any labor disputedispute or other employment related problem, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement agreement, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; , (gvii) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or , (hviii) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in or (ix) any commitment to do any of the ordinary course of business consistent with past practiceforegoing.
Appears in 3 contracts
Sources: Merger Agreement (Deutsche Bank Ag\), Merger Agreement (Deutsche Bank Ag\), Merger Agreement (National Discount Brokers Group Inc)
Absence of Certain Changes. Except Since November 30, 1998, except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 7.8 of the Disclosure Letter, since July 31, 1997, Schedule there has not been any: (i) change in the assets, liabilities, sales, income, or business of the Company and or in its Subsidiaries have not suffered any Material Adverse Effect relationships with suppliers, customers, or any changelessors, condition, event or development other than changes that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only were both in the ordinary course consistent with past practiceof business and have not caused, except either in connection with any case or in the negotiation and execution and delivery aggregate, a Material Adverse Effect on the Company; (ii) acquisition or disposition by the Company of this Agreement, and any material asset or property; (iii) there has damage, destruction or loss, whether or not been covered by insurance, materially and adversely affecting, either in any case or in the aggregate, the business or any material property of the Company; (aiv) any declaration, setting aside or payment of any dividend or any other distribution distributions in respect of any shares of capital stock of the Shares Company; (v) issuance of any shares of the capital stock of the Company or any repurchasedirect or indirect redemption, redemption purchase, or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of such capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiariesstock; (bvi) loss of the services of any entry into any employment agreement officer or severance compensation agreement withkey employee or consultant, or any increase in the rate compensation, pension, or terms (including any acceleration of the right to receive payment), of compensation other benefits payable or to become payable by the Company or to any of its Subsidiaries to, their respective directors, officers or employeeskey employees or consultants, except increases or any bonus payments or arrangements made to employees who are not officers or directors occurring with any of them; (vii) forgiveness or cancellation of any debts or claims by the Company or any waivers of any rights; (viii) entry by the Company into any transaction with any of its Affiliates; (ix) incurrence by the Company of any obligations or liabilities, whether absolute, accrued, contingent or otherwise (including without limitation liabilities as guarantor or otherwise with respect to obligations of others), other than obligations and liabilities incurred in the ordinary course of business in accordance with its customary past practicespersons other than Affiliates of the Company; (cx) incurrence or imposition of any increase in the rate or terms (including Lien on any acceleration of the right to receive paymentassets, tangible or intangible, of the Company; or (xi) of any Plan (as hereinafter defined) discharge or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action satisfaction by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change Lien or payment by the Company in accounting methods, principles of any obligation or practices except as required by changes in United States generally accepted accounting principles; liability (ffixed or contingent) any labor dispute, other than routine individual grievances(A) current liabilities included in the November 30, or any activity or proceeding by a labor union or representative thereof 1998 Balance Sheet, (B) current liabilities to organize any employees persons other than Affiliates of the Company or any Subsidiaryincurred since November 30, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than 1998 in the ordinary course of business consistent business, and (C) current liabilities incurred in connection with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to transactions contemplated hereby and disclosed in Section 7.8 of the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceDisclosure Schedule.
Appears in 3 contracts
Sources: Merger Agreement (Leukosite Inc), Merger Agreement (Leukosite Inc), Merger Agreement (Leukosite Inc)
Absence of Certain Changes. Except as disclosed Since December 31, 1999, there has not -------------------------- been with respect to the Company:
(a) any change in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof financial condition, properties, assets, liabilities, business or operations thereof which change by itself or in Section 4.04 of the Disclosure Letterconjunction with all other such changes, since July 31, 1997, (i) the Company and its Subsidiaries have whether or not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only arising in the ordinary course consistent of business, has had or will have a material adverse effect thereon;
(b) any contingent liability incurred thereby as guarantor or otherwise with past practicerespect to the obligations of others;
(c) any mortgage, except encumbrance or Lien placed on any of the properties thereof;
(d) any material obligation or liability incurred thereby other than obligations and liabilities incurred in connection with the negotiation ordinary course of business in individual amounts less than $25,000;
(e) any purchase or sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets thereof other than in the ordinary course of business in individual amounts less than $25,000;
(f) any damage, destruction or loss, whether or not covered by insurance, materially and execution and delivery of this Agreementadversely affecting the properties, and assets or business thereof;
(iii) there has not been (ag) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock thereof, any split, combination or recapitalization of the Shares capital stock thereof or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by of the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership membership interests in, the Company or any of its Subsidiaries; thereof;
(bh) any entry into labor dispute or claim of unfair labor practices, any employment agreement or severance compensation agreement with, or any increase change in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or to any of its Subsidiaries toofficers, their respective directorsmanagers, officers employees or employeesagents, except increases or any bonus payment or arrangement made to or with any of such officers, managers, employees who are or agents;
(i) any change with respect to the management, supervisory or other key personnel thereof;
(j) any payment or discharge of a Lien or liability thereof which Lien was not officers either shown on the Balance Sheet or directors occurring incurred in the ordinary course of business in accordance with its customary past practices; thereafter;
(ck) any increase obligation or liability incurred thereby to any of its officers, employees, directors or shareholders or any loans or advances made thereby to any of its officers, employees, directors or shareholders except normal compensation and expense allowances payable to officers and employees;
(l) any amendment or change in the rate Articles of Incorporation, bylaws or terms (including any acceleration other governing documents of the right to receive payment) of any Plan Company; or
(as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (em) any change by in the Company in accounting methods, principles policies or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees procedures of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since December 31, 19972015, (i) the Company Seller and its Subsidiaries the Target Entities have conducted their respective businesses in all material respects in the ordinary course of business consistent with past practice, and (ii) there has not suffered been:
(i) any Material Adverse Effect change in the financial condition, business or results of their operations or any changecircumstance, condition, event occurrence or development that could of which the Seller Management or the Target Entities have Knowledge which, individually or in the aggregate, has had or is reasonably be expected likely to have a Material Adverse Effect, ;
(ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in with respect of the Shares or to any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities inof the Seller, or other ownership interests in, the Company any Target Entity or any of its Subsidiaries; their Subsidiaries (bexcept for dividends or other distributions by any Subsidiary to the applicable Target Entity);
(iii) any entry into material change in any employment agreement method of accounting or severance compensation agreement with, accounting practice by the Seller or the Target Entities;
(iv) (1) any increase in the rate compensation or terms (including any acceleration of the right to receive payment), of compensation benefits payable or to become payable by the Company or any of to its Subsidiaries to, their respective directors, officers or employees, employees (except for increases to employees who are not officers or directors occurring in the ordinary course of business in accordance and consistent with its customary past practices; practice) or (c2) any increase establishment, adoption, entry into or amendment of any collective bargaining, bonus, profit sharing, equity, 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 applicable Law;
(v) any Material Adverse Effect;
(vi) any amendment, modification, or supplement to the charter documents of the Seller or the Target Entities;
(vii) any issuance, sale, grant, or other disposition of any equity or debt securities of the Seller or any Target Entity;
(viii) any capital expenditure (or series of related capital expenditures) outside the ordinary course of business in excess of $50,000 in the rate aggregate that was not contemplated by its capital expenditure budget;
(ix) settlement or terms compromise of any pending or threatened Actions against the Seller or any Target Entity;
(including x) sale, assignment, license or transfer of any acceleration material portion of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any assets of the clauses of Section 6.01 hereof; (e) any change by Seller or the Company in accounting methodsTarget Entities, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; business;
(xi) sale assignment, license or (h) transfer of any entry into Target IP to any agreementthird party, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than except in the ordinary course of business consistent with past practicebusiness;
(xii) any loans or advances to, or guarantees for the benefit of, any Persons (except to employees in the ordinary course of business);
(xiii) any failure to pay when due any indebtedness or other amounts owed to creditors of any Target Entity; or
(xiv) any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Asset and Securities Purchase Agreement (Remark Media, Inc.), Asset and Securities Purchase Agreement (Remark Media, Inc.)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed set forth on Schedule 3.10 or with the SEC prior respect to the date hereof or transactions set forth in Section 4.04 of the Disclosure Letterthis Agreement, since July 31September 30, 19972008, (i) through the Company and its Subsidiaries have date of this Agreement and, if later, the Closing, there has not suffered been:
3.10.1 Any transaction involving any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only Borrower not in the ordinary course consistent with past practiceof business, except including, without limitation, any sale of any assets or properties (other than the sale of inventory in connection with the negotiation and execution and delivery ordinary course of this Agreement, and (iii) there has not been (a) any business);
3.10.2 Any declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, stock or property) with respect to the Securities of the Shares any Borrower, or any repurchaseredemption, redemption purchase or other acquisition by the Company or any of its Subsidiaries Securities of any outstanding shares Borrower, or (other than salary payments in the ordinary course of capital stock business) any payment to any stockholder of any Borrower not in his, her or its capacity as a stockholder;
3.10.3 Any damage, destruction or loss whether or not covered by insurance, to any material assets or properties of any Borrower;
3.10.4 Any Material Adverse Change with respect to any Borrower;
3.10.5 Any loan or advance made by any Borrower to any Person, except normal travel advances or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring reasonable business expense advances made in the ordinary course of business to its own employees;
3.10.6 Any Indebtedness incurred by any Borrower or any commitment to incur Indebtedness entered into by any Borrower;
3.10.7 Any commitments to make Capital Expenditures by a Borrower with amounts to be paid post-Closing in accordance with its customary past practices; (c) any increase excess of $10,000 individually or $50,000 in the rate aggregate;
3.10.8 Any indemnity or terms other claims made by any Borrower (including any acceleration of or the right to receive payment) resolution of any Plan (as hereinafter definedpending claims) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) or in connection with any revaluation by acquisition or sale or other disposition, whether direct or indirect, of the Company Securities, business or any of its Subsidiaries assets of any other Person;
3.10.9 Any amendment or other modification to the Charter Document of their respective assetsany Borrower;
3.10.10 The formation or creation of any direct or indirect Subsidiary of any Borrower, including write-downs or the disposition of inventory the Securities or assets of any Borrower;
3.10.11 Any waiver by any Borrower of a valuable right or of accounts receivable Indebtedness owed to it;
3.10.12 Any payment, satisfaction, discharge or cancellation of any material debt or claim of any Borrower other than in the ordinary course of business consistent with past practice; practices;
3.10.13 Any amendment, modification or termination of any Material Contract or any material agreement to which any Borrower is a party or by which any Borrower or any of their assets or properties may be bound or subject or of any employment or consulting agreement;
3.10.14 Any material change in the Contingent Obligations of any Borrower, by way of guaranty or otherwise;
3.10.15 Any mortgage, pledge or Lien encumbering any of the assets or properties of any Borrower, or any assumption of, or taking any assets or properties subject to, any liability, except for Permitted Liens;
3.10.16 Any resignation by, or termination of the employment of, any director or officer of any Borrower;
3.10.17 Any Investment by any Borrower in the Securities of any Person;
3.10.18 Any payment of management, consulting or similar fees by any Borrower to any of their respective Affiliates;
3.10.19 Any offer, issuance or sale of any Securities of any Borrower;
3.10.20 Any alteration or change in any Borrower’s credit guidelines and policies, charge-off policies or accounting methods, quality control procedures, hiring procedures, or policies or manner of preparing its financial statements or maintaining its books of account;
3.10.21 Any increase in, or commitment to increase, the salaries, wages, bonuses or other compensation or benefits (hincluding commissions) payable or to become payable to any entry into officer or non-officer other employee of any agreementBorrower, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than increases in salaries and wages for employees in the ordinary course of business consistent with past practicepractices;
3.10.22 Any adoption by any Borrower of any new Benefit Plan or amendment to any Benefit Plan to provide any new or additional plans, programs, contracts, benefits or arrangements involving direct or indirect compensation to any officer, director, employee, former employee, or their dependents or beneficiaries, of any Borrower;
3.10.23 Any settlement of any litigation, entry of a consent decree or entry of any judgment against any Borrower with an aggregate value of $50,000 or more;
3.10.24 Any revaluation by any Borrower of any of their respective assets, including without limitation, any write-offs, increases in any reserves except in the ordinary course of business consistent with past practice or any write-up or write-down of the value of, inventory, property, plant, equipment, or any other asset (including as a result of the impairment of goodwill);
3.10.25 Any proceeding or other steps for the dissolution, winding up, reorganization or bankruptcy by any Borrower;
3.10.26 Any revaluation or repricing of any Securities of any Borrower; or
3.10.27 Any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Securities Purchase and Sale Agreement (Vintage Capital Group, LLC), Securities Purchase and Sale Agreement (Caprius Inc)
Absence of Certain Changes. Except as for transactions contemplated by the Transaction Agreements (including, without limitation, transactions expressly permitted pursuant to Section 7.02 hereof), transactions with respect to which the Investor shall have given its prior written consent, or transactions disclosed in the SEC Reports (as defined Reports, on Schedule 3.09 hereto or in Section 4.05) filed with the SEC prior Proposed Asset Sale Letter, from September 30, 1998 to the date hereof or Closing, the Company and its Significant Subsidiaries have conducted their business in Section 4.04 the ordinary and usual course, and there has not been any of the Disclosure Letter, since July 31, 1997, following:
(i) any change or amendment to the Certificate of Incorporation or Bylaws or the certificate or articles of incorporation, bylaws or other organizational documents of any Significant Subsidiaries of the Company;
(ii) any issuance or sale, or any direct or indirect purchase, redemption or other acquisition of any shares of their respective Equity Securities or any Derivative Securities by the Company or any of its Significant Subsidiaries, other than pursuant to this Agreement, the Company Warrants or the Option Plans;
(iii) any dividend or other distribution declared, set aside, paid or made with respect to their respective Equity Securities by the Company or any of its Significant Subsidiaries, except (x) dividends or other distributions made to the Company or to any Subsidiary of the Company and (y) dividends and distributions declared, set aside, paid or made by any joint venture in which the Company or any Significant Subsidiary owns an equity interest, which dividends and distributions were declared, set aside, paid or made in accordance with the organizational documents or related service agreements of such joint venture as in effect on the date of such payment;
(iv) any acquisition or disposition of assets by the Company and its Subsidiaries have not suffered any Material Adverse Effect having a fair value or any changefor a purchase price in excess of $5,000,000, conditionin the aggregate, event other than acquisitions or development that could reasonably be expected to have a Material Adverse Effect, (ii) dispositions made in the ordinary course of business and acquisitions or dispositions among the Company and its Subsidiaries have conducted their respective businesses only or among such Subsidiaries;
(v) any increase in excess of $5,000,000 in the ordinary course consistent with past practiceIndebtedness of the Company and its Subsidiaries, except taken as a whole, other than (x) advances to the Company pursuant to the revolving credit facility under the Credit Agreement in connection with an amount not in excess of $60,000,000, in the negotiation and execution and delivery of this Agreementaggregate, outstanding at any time and (iiiy) there has not been changes in inter-company Indebtedness among the Company and its Subsidiaries or among Subsidiaries of the Company, which changes were permitted under the Credit Agreement (aas in effect on the date hereof);
(vi) any declaration, setting aside or payment amendment of any dividend mortgage, Lien, lease, Regulatory Approval, loan agreement, indenture or other distribution in respect agreement, instrument or document, which amendment is material to the Company and its Subsidiaries, taken as a whole;
(vii) any default, event of the Shares default or breach (or any repurchaseevent which, redemption with notice or other acquisition the passage of time or both, would constitute a default, event of default or breach) by the Company or any of its Subsidiaries of any outstanding shares of capital stock credit, financing or other securities inagreement or instrument relating to any Indebtedness (including, without limitation, the Credit Agreement or the Indenture), which default, event of default or breach is material to the Company and its Subsidiaries, taken as a whole;
(viii) any damage, destruction, theft or other casualty loss (whether or not covered by insurance) that is material to the Company and its Subsidiaries taken as a whole;
(ix) any commitment, agreement or transaction entered into, amended, or other ownership interests in, terminated (or any waiver of any rights or remedies under any of the foregoing) by the Company or any of its Subsidiaries (including any agreement with respect to any ongoing or threatened litigation) that is material to the Company and its Subsidiaries; , taken as a whole, other than in the ordinary course of business;
(bx) any entry into or amendment of any employment agreement material employment, severance, compensation, consulting, retention, change of control or severance compensation similar agreement with, or any material increase in the rate compensation or terms (including any acceleration of the right to receive payment), of compensation benefits payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course any employee of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable (other than agreements terminable without penalty or similar payment by the Company or such Subsidiary, as the case may be, on not more than 30 days' notice and increases in compensation payable or to become payable to employees (other than directors or officers) in the ordinary course of business consistent with past practice; or );
(hxi) any entry into any agreementchange in the financial accounting methods, commitment principles or transaction by the Company which is material to practices of the Company and its Subsidiaries taken for financial accounting purposes, except as a whole required by GAAP or applicable Law;
(xii) any adoption of any agreement or understanding with respect to any Control Transaction, merger, consolidation or other reorganization with respect to the Company or any of its Significant Subsidiaries, or any adoption of any plan, agreement or arrangement with respect to, or resolutions providing for, the liquidation or dissolution of the Company or any of its Significant Subsidiaries;
(xiii) any settlement or compromise of any Proceeding other than those in which the amount paid (to the extent not reimbursed with the proceeds of any Policy) does not exceed $2,000,000;
(xiv) any change, condition, occurrence, circumstance or other event that, individually or in the ordinary course aggregate, has had or is reasonably likely to have a Material Adverse Effect; or
(xv) any commitment or agreement to do any of business consistent with past practicethe foregoing, except as otherwise required or expressly permitted by this Agreement.
Appears in 2 contracts
Sources: Investment Agreement (TPG Advisors Ii Inc), Investment Agreement (Magellan Health Services Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to From the date hereof or in Section 4.04 of the Disclosure LetterBalance Sheet through the date of this Agreement, since July 31, 1997, (i) the business of the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changehas been conducted, conditionin all material respects, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been or occurred, as the case may be:
(a) any Company Material Adverse Effect;
(b) other than cash dividends made by any wholly owned Subsidiary of the Company to the Company or one of its Subsidiaries, any split, combination or reclassification of any shares of capital stock, declaration, setting aside or payment paying of any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any shares of capital stock of the Shares Company or any repurchaseSubsidiary;
(c) any material change in any method of accounting or accounting principles or practice by the Company or any of its Subsidiaries, except for any such change required by reason of a change in GAAP or regulatory accounting principles;
(d) any Tax election or change in Tax election or settlement or compromise of any Tax liability by the Company or any of its Subsidiaries;
(e) any amendment of the Company’s certificate of incorporation or bylaws;
(f) any acquisition, redemption or other acquisition amendment of any Company Securities or Subsidiary Securities;
(g) (i) any incurrence or assumption of any long-term or short-term debt for borrowed money or issuance of any debt securities by the Company or any of its Subsidiaries except for capital leases, short-term debt incurred to fund operations of any outstanding shares of capital stock the business or other securities in, or other ownership interests in, owed to the Company or any of its wholly-owned Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment)each case, of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or , (hii) any entry into assumption, guarantee or endorsement of the obligations of any agreement, commitment other Person (except direct or transaction indirect wholly-owned Subsidiaries of the Company) by the Company which is material to or any of its Subsidiaries, (iii) any loan, advance or capital contribution to, or other investment in, any other Person by the Company and or any of its Subsidiaries taken as a whole (other than customary loans or advances to employees or direct or indirect wholly-owned Subsidiaries, in each case in the ordinary course of business consistent with past practice) or (iv) any mortgage or pledge of the Company’s or any of its Subsidiaries’ assets, tangible or intangible, or any creation of any Lien thereupon (other than Permitted Encumbrances);
(h) any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(i) any grant of severance or termination pay (in cash or otherwise) to any Employee, including any officer, of the Company or its Subsidiaries;
(j) any payment or agreement to pay any special bonus or special remuneration (including grants of Company Options, Company RSUs and/or Company Restricted Stock) to any Employee, or increase or agreement to increase the salaries, wage rates, or other compensation or benefits of any Employee;
(k) any waiver of any stock repurchase rights, or acceleration, amendment or change in the period of exercisability, as applicable, of Company Options, Company RSUs and/or Company Restricted Stock or any other equity or similar incentive awards (including without limitation any long-term incentive awards), or repricing of stock options or authorizing cash payments in exchange for any stock options granted under any of such plans;
(l) any adoption or material amendment of an Employee Plan; or
(m) any promotion, demotion, or other change to the employment status or title of any executive officer of the Company or Key Employee.
Appears in 2 contracts
Sources: Acquisition Agreement (Salesforce Com Inc), Acquisition Agreement (ExactTarget, Inc.)
Absence of Certain Changes. Except as disclosed set forth on Schedule 4.09 hereto, since March 31, 2004 there has not been any: (a) damage, destruction, or casualty or personal injury or loss, whether or not insured, affecting a material portion of the assets or properties of the Company; (b) material change in the SEC Reports Company’s customary methods of operations or the manner in which the Business is conducted; (as defined c) change in Section 4.05the Company’s accounting policies, procedures or methodologies or tax principles, practices or policies, (d) filed with the SEC prior to the date hereof any increase in reserves or in Section 4.04 any revaluation of any of the Disclosure LetterCompany’s assets; (e) sale, since July 31transfer or assignment of any material tangible or intangible asset of the Company, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only except in the ordinary course consistent with past practiceof the Business; (f) material mortgage, except in connection with pledge or imposition of any Lien on any asset of the negotiation and execution and delivery Company, or material lease of this Agreementreal property, and machinery, equipment or buildings entered into by the Company; (iiig) there has not been (a) any declaration, setting aside or payment of any dividend or any other distribution in respect of any capital stock or other securities of the Shares Company or, directly or indirectly, any repurchasepurchase, redemption redemption, issuance, or other acquisition or disposition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities or grant of any option relating to its authorized shares of capital stock, except regularly scheduled quarterly dividends to pay Taxes that are due and payable by the Sellers and attributable to the earnings of the Company; (h) capital investment in, loan to, or acquisition of the securities or assets of (including by merger or consolidation), any other ownership interests in, the Company or any of its SubsidiariesPerson; (bi) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate compensation, bonus or terms (including any acceleration of the right other benefits payable to receive payment)directors, of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directorsconsultants, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor disputeCompany, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than increases in the ordinary course of business consistent with past practice; practice or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than payments made in the ordinary course of business the Business consistent with past practice; (j) delay or postponement of any accounts payable or other material liabilities or acceleration or acceptance of the prepayment of any notes or accounts receivable outside the ordinary course of the Business; (k) change made or authorization to make a change to the Company’s Articles of Incorporation or Bylaws; (l) amendment or termination of any material contract, agreement or Permit, (m) waiver, settlement or release of any material right or claim relating to the Business, except in the ordinary course of the Business, (n) write-off as uncollectible any notes or accounts receivable related to the Business, except write-offs in the ordinary course of the Business charged to applicable reserves, none of which individually or in the aggregate is material to the Business; (o) change in the terms of Extended Service Plans sold, (p) capital expenditure not in accordance with the capital expenditure plan included in the Confidential Memorandum, (q) event or condition of any character that constitutes or could reasonably be expected to constitute a Material Adverse Effect; or (r) agreement, whether or not in writing, to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Hhgregg, Inc.), Merger Agreement (HHG Distributing, LLC)
Absence of Certain Changes. Except as disclosed Since the RAI Balance Sheet Date, the RAI Companies have conducted the RAI Business in the SEC Reports (ordinary course, as defined in Section 4.05) filed with the SEC prior to of the date hereof or in Section 4.04 of the Disclosure Letterhereof, since July 31, 1997, there has not been:
(ia) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changeon the RAI Business or, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practiceaggregate, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect Liabilities of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; RAI Companies;
(b) any entry into any employment agreement distribution or severance compensation agreement withpayment declared or made in respect of RAI's capital stock by way of dividends, purchase or any increase in the rate redemption of shares or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; otherwise;
(c) any increase in the rate compensation payable or terms (including to become payable to any acceleration of the right to receive payment) current director or officer of any Plan (as hereinafter defined) or RAI Company, except for merit and seniority increases for employees made in the ordinary course of business, nor any other bonusmaterial change in any existing employment, severance, insurance, pension consulting arrangements or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; RAI Benefit Plan;
(d) any action by the Company whichsale, if taken after the date hereof, would constitute a breach assignment or transfer of any RAI Assets, or any additions to or transactions involving any RAI Assets, other than those made in the ordinary course of business or those solely involving the clauses of Section 6.01 hereof; RAI Companies;
(e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business, any waiver or release of any material claim or right or cancellation of any material debt held by any RAI Company;
(f) any change in practice with respect to Taxes, or any election, change of any election, or revocation of any election with respect to Taxes, or any settlement or compromise of any dispute involving a Tax liability;
(i) any creation, assumption or maintenance of any long-term debt or any short-term debt for borrowed money other than under existing notes payable, lines of credit or other credit facility or in the ordinary course of business consistent or with past practicerespect to its Wholly-Owned Subsidiaries; (ii) any assumption, granting of guarantees, endorsements or otherwise becoming liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except its Wholly-Owned Subsidiaries; or (iii) any loans, advances or capital contributions to, or investments in, any other Person except its Wholly-Owned Subsidiaries;
(h) any entry into any material agreement, commitment or transaction by contract, except agreements, commitments or contracts for the Company which is material to purchase, sale or lease of goods or services in the Company and its Subsidiaries taken as a whole ordinary course of business;
(i) other than in the ordinary course of business consistent business, any authorization, recommendation, proposal or announcement of an intention to authorize, recommend or propose, or enter into any Contract with past respect to, any (i) plan of liquidation or dissolution, (ii) acquisition of a material amount of assets or securities, (iii) disposition or Encumbrance of a material amount of assets or securities, (iv) merger or consolidation or (v) material change in its capitalization; or
(j) any change in accounting or Tax procedure or practice.
Appears in 2 contracts
Sources: Merger Agreement (Internet Business International Inc), Merger Agreement (Return Assured Inc)
Absence of Certain Changes. Except as disclosed in the Veeco SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterDocuments, since July 31September 30, 19971999 (the "VEECO BALANCE SHEET DATE"), (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company Veeco and its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been occurred: (ai) any declarationchange, setting aside event or payment condition (whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Material Adverse Effect to Veeco; (ii) any acquisition, sale or transfer of any dividend or other distribution in respect material asset of the Shares or any repurchase, redemption or other acquisition by the Company Veeco or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable subsidiaries other than in the ordinary course of business and consistent with past practice; or (hiii) any entry into change in accounting methods or practices (including any agreementchange in depreciation or amortization policies or rates) by Veeco or any revaluation by Veeco of any of its assets; (iv) any declaration, commitment setting aside, or transaction by the Company which is material payment of a dividend or other distribution with respect to the Company and shares of Veeco, or any direct or indirect redemption, purchase or other acquisition by Veeco of any of its Subsidiaries taken as a whole shares of capital stock; (v) any material contract entered into by Veeco or any of its subsidiaries, other than in the ordinary course of business consistent business, or any material amendment or termination of, or default under, any material contract to which Veeco or any of its subsidiaries is a party or by which it or any of them is bound; (vi) any action or failure to act that could reasonably be expected to cause the Merger to fail to qualify as a reorganization as described in Section 368(a) of the Code with past practicerespect to which no gain or loss will be recognized by a stockholder of the Company on the conversion of Company Common Stock into Veeco Shares pursuant to the Merger (except with respect to any cash received in lieu of a fractional share); or (vii) any agreement by Veeco or any of its subsidiaries to do any of the things described in the preceding clauses (i) through (vi) (other than negotiations with the Company and its representatives regarding the transactions contemplated by this Merger Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Absence of Certain Changes. Except Since the Balance Sheet Date, except as disclosed in the Company SEC Reports (as defined in Section 4.05) Documents filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, hereof:
(i1) the Company and each Company Subsidiary has conducted its Subsidiaries respective business only in the ordinary and usual course, consistent with past practice;
(2) there have not suffered occurred any Material Adverse Effect events, changes, effects or circumstances (including the incurrence of any changeliabilities of any nature, conditionwhether or not accrued, event contingent or development that otherwise) having or which could reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, ,
(ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii3) there has not been (aA) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (B) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Shares or Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Derivative Securities awarded prior to December 31, 2001, (C) (i) any repurchase, redemption or other acquisition granting by the Company or any of its Subsidiaries of to any outstanding shares of capital stock current or former director, executive officer or other securities in, or other ownership interests in, key employee of the Company or any its Subsidiaries of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in compensation, bonus or other benefits, except for normal increases in the rate ordinary course of business or terms (including as was required under any acceleration employment agreements identified on the Company Disclosure Schedule in effect as of the right date of the date hereof and awarded prior to receive payment)December 31, of compensation payable or to become payable 2001, (ii) any granting by the Company or any of its Subsidiaries toto any such current or former director, their respective directors, officers executive officer or employeeskey employee of any increase in severance or termination pay, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; and awarded prior to December 31, 2001, or (ciii) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation entry by the Company or any of its Subsidiaries of into, or any of their respective assetsamendment of, including write-downs of inventory any employment, deferred compensation, consulting, severance, termination or of accounts receivable indemnification agreement with any such current or former director, executive officer or key employee, other than in the ordinary course of business consistent with past practice; and in effect prior to December 31, 2001, (C) except insofar as may have been disclosed in the Company Disclosure Schedule or required by a change in U.S. GAAP (h) which likewise shall be disclosed in the Company Disclosure Schedule), any entry into any agreementchange in accounting methods, commitment principles or transaction practices by the Company materially affecting its assets, liabilities or business or (D) except insofar as may have been disclosed in the Company Disclosure Schedule, any tax election that individually or in the aggregate would reasonably be expected to have a Company Material Adverse Effect on the Company or any of its tax attributes or any settlement or compromise of any material income tax liability, and
(4) the Company has not taken any action which is material would have been prohibited under Section 5.1 if such section applied to the Company period between the Balance Sheet Date and its Subsidiaries taken the date of execution of this Agreement. Except as a whole other than set forth in the ordinary course Company Disclosure Schedule, the Company is not aware of business consistent with past practiceany circumstances which may cause it to suffer any material adverse change in its business, operations or prospects or to restate its results of operations for any prior period.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) Since July 19, 2012 through the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, date of this Agreement:
(iiA) the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than in accordance with, the ordinary course of such businesses consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and practices;
(iiiB) there has not been any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance;
(aC) there has not been any declaration, accrual, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company or any of its Subsidiaries (except for dividends or other distributions by any direct or indirect wholly-owned Subsidiary to the Company or to any wholly-owned Subsidiary of the Company), 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 in, or other ownership interests in, of the Company or any of its Subsidiaries; ;
(bD) there has not been any entry into material change in any employment agreement method of accounting or severance compensation agreement with, accounting practice or any increase in the rate or terms internal controls (including any acceleration of the right to receive payment), of compensation payable or to become payable internal controls over financial reporting) by the Company or any of its Subsidiaries toSubsidiaries, their respective directorsexcept insofar as may have been required by a change in GAAP or SEC rules and regulations;
(E) there has not been (x) except in connection with the consummation of the Company’s initial public offering, any (1) increase in the compensation payable or to become payable to the officers or employeesemployees of the Company or its Subsidiaries or (2) payment to any director or officer of the Company or its Subsidiaries of any material bonus, made to any director or officer of the Company or its Subsidiaries of any material profit-sharing or similar payment, or grant to any director or officer of the Company or its Subsidiaries of any rights to receive severance, termination, retention or Tax gross-up compensation or benefits (in any case, except for increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business and consistent with past practice; ) or (hy) any establishment, adoption, entry into or amendment of any collective bargaining, bonus, profit sharing, thrift, compensation, employment, termination, severance or other plan, agreement, commitment trust, fund, policy or transaction by arrangement for the benefit of any director, officer or employee, other than Company which is material RSUs granted to the Company’s board of directors in compliance with the Stock Plans in effect on the date of this Agreement; and
(F) there has not been any agreement to do any of the foregoing.
(ii) Since July 19, 2012, there has not been any change in the financial condition, business or results of operations of the Company and its Subsidiaries taken as a whole other than or any event, change, effect or occurrence which, individually or in the ordinary course of business consistent with past practiceaggregate, has had or would reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (KAYAK Software Corp), Merger Agreement (Priceline Com Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.053.01(i) filed with of the SEC prior to Company Disclosure Schedule, since December 31, 2015 until the date hereof or in Section 4.04 of the Disclosure Letterhereof, since July 31, 1997, (i) the Company and its Subsidiaries have not not:
(i) suffered any Material Adverse Effect or any changeevent, condition, event occurrence or development that could reasonably be expected to have would constitute a Material Adverse Effect, ;
(ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent effected any merger, consolidation, amalgamation, scheme of arrangement or other business combination with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and or into any other Person;
(iii) there has suffered any damage, destruction or loss, whether or not been covered by insurance, in an amount in excess of $750,000;
(aiv) any declaration, setting aside granted or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or agreed to make any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers to any officer or employeesemployee, except increases to employees who are not officers or directors occurring for normal raises for nonexecutive personnel made in the ordinary course of business that are usual and normal in accordance with its customary past practices; amount;
(cv) incurred any increase in material liabilities that would be required by GAAP to be reflected on the rate or terms (including any acceleration face of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor disputebalance sheet, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (gA) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than liabilities incurred in the ordinary course of business consistent with past practice; and (B) liabilities which in the aggregate do not exceed $750,000;
(vi) made any change in the accounting methods or practices it follows, whether for general financial or Tax purposes, or any change in depreciation or amortization policies or rates adopted therein, or made any material Tax election or any settlement or compromise of any material Tax liability;
(hvii) declared, set aside or made any entry into dividend or distribution of cash or other property to its shareholders or declared or agreed to any agreementdirect or indirect redemption, commitment retirement, purchase or transaction other acquisition any shares of the capital stock of the Company or any Subsidiary of the Company;
(viii) made or announced any redemption, repurchase or other acquisition of any equity securities of the Company or its Subsidiaries by the Company which is material or its Subsidiaries (other than repurchase of Common Shares to satisfy obligations under any share incentive plan or other similar plans or arrangements including the withholding of shares of Common Shares in connection with the exercise of company options in accordance with the terms and conditions of such company options);
(ix) issued any shares of capital stock of the Company or its Subsidiaries, or any warrants, rights or options thereof, or entered into any commitment relating to the shares of capital stock of the Company and or its Subsidiaries, except pursuant to the existing Company stock option plan;
(x) commenced or settled any material Action involving the Company or its Subsidiaries taken as a whole other than or which may impose any material restrictions on the Company or its Subsidiaries or the conduct of their respective businesses;
(xi) adopted or proposed the adoption of any change in the ordinary course constitutional documents of business consistent with past practicethe Company or its Subsidiaries; or
(xii) agreed or committed to do any of the acts described in this Section.
Appears in 2 contracts
Sources: Share Purchase Agreement (Weichai America Corp.), Share Purchase Agreement (Power Solutions International, Inc.)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 set forth on Schedule 2.6 of the Disclosure LetterSchedule, since July 31the Target Balance Sheet Date, 1997, Target and Predecessor have each conducted its business in the ordinary course and there has not occurred: (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development condition (whether or not covered by insurance) that could has resulted in, or might reasonably be expected to have result in, a Material Adverse Effect, Effect to Target or Predecessor; (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practiceany acquisition, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside sale or payment transfer of any dividend asset of Target or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable Predecessor other than in the ordinary course of business and consistent with past practicepractice or that would have a Material Adverse Effect; or (hiii) any entry into change in accounting methods or practices (including any agreementchange in depreciation or amortization policies or rates) by Target or Predecessor or any revaluation by Target or Predecessor of any of Target’s or Predecessor’s assets; (iv) any declaration, commitment setting aside, or transaction by the Company which is material payment of a dividend or other distribution with respect to the Company and shares of Target or membership interests of Predecessor or any direct or indirect redemption, purchase or other acquisition by Target of any of its Subsidiaries taken as a whole Target Shares or by Predecessor of its membership interests; (v) any Material Contract entered into by Target or Predecessor, other than in the ordinary course of business consistent and as provided to Acquiror, or any amendment or termination of, or default under, any Material Contract to which Target or Predecessor is a party or by which either of them is bound; (vi) any amendment or change to the charter documents of Target or the charter documents of Predecessor; (vii) any increase in or modification of the compensation or benefits paid, payable or to become payable by Target or Predecessor to any of its managers, officers or employees; (viii) any reduction in the sales of Target or Predecessor to, or significant detrimental change in terms with, any customer for the twelve month period beginning on the Closing and ending on the one-year anniversary of the Closing as compared to the same time period during the previous year or (ix) any negotiation or agreement by Target or Predecessor to do any of the things described in the preceding clauses (i) through (viii) (other than in connection with past practice(A) the Reorganization, and (B) negotiations with Merger Sub, Acquiror and their representatives regarding the transactions contemplated by this Agreement). As of Closing, there will be no accrued but unpaid dividends on the Target Shares.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Catcher Holdings, Inc), Merger Agreement (Catcher Holdings, Inc)
Absence of Certain Changes. Except for transactions contemplated by the Transaction Agreements (including, for the period from the date hereof to the Closing, transactions expressly permitted pursuant to Section 7.02 hereof or with respect to which the Investor shall have given its written consent), or as disclosed in the SEC Reports (as defined in Section 4.05) filed with Reports, the SEC prior to the date hereof Draft 1997 Statements or in Section 4.04 of the Disclosure Letteron Schedules 3.09 and 3.11 hereto, since July December 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) 1997 the Company and its Subsidiaries have conducted their respective businesses only consolidated business in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreementusual course, and (iii) there has not been any of the following:
(ai) any declarationchange or amendment to the certificate or articles of incorporation, setting aside bylaws or payment other organizational documents of the Company or any of its Subsidiaries;
(ii) any issuance or sale or purchase or redemption of any shares of their respective Equity Securities or of any Derivative Securities, other than pursuant to this Agreement, the Option Plans and the CEO Agreement;
(iii) any dividend or other distribution in declared, set aside, paid or made with respect of the Shares to their respective Equity Securities or any repurchasedirect or indirect redemption, redemption purchase or other acquisition of such Equity Securities by the Company or any of its Subsidiaries, except dividends or other distributions made to the Company or to any Wholly-Owned Subsidiary of the Company;
(iv) any acquisition or disposition of assets by the Company and its Subsidiaries having a fair value or for a purchase price in excess of $5,000,000, in the aggregate, other than acquisitions or dispositions made in the ordinary course of business (including acquisitions and dispositions by Subsidiaries of the Company of investment securities of any Person, provided the Company and its Subsidiaries Beneficially Own (and, after giving effect to such transactions would Beneficially Own), in the aggregate, less than 5% of the Voting Power of the Voting Securities of such Person) and acquisitions or dispositions among the Company and its Wholly-Owned Subsidiaries or among such Wholly-Owned Subsidiaries;
(v) except for borrowings under the Bridge Agreement up to $200,000,000, any increase in excess of $10,000,000 in the Indebtedness of the Company and its Subsidiaries, taken as a whole, other than repayments at stated maturity and any change in intra-Company Indebtedness among the Company and its Wholly-Owned Subsidiaries or among such Wholly-Owned Subsidiaries;
(vi) except pursuant to the Bridge Agreement and related instruments, any material amendment of any mortgage, Lien, lease, agreement, Regulatory Approval, loan agreement, indenture or other instrument or document;
(vii) any default, event of default or breach (or any event which, with notice or the passage of time or both, would constitute a default, event of default or breach) by the Company or any of its Subsidiaries of any outstanding shares of capital stock credit, financing or other securities inagreement or instrument relating to any material Indebtedness;
(viii) any material damage, destruction, theft or other casualty loss (whether or not covered by insurance);
(ix) except pursuant to the Bridge Agreement, any material commitment, agreement or transaction entered into, amended, or other ownership interests in, terminated (or any waiver of any rights or remedies under any of the foregoing) by the Company or any of its Subsidiaries; Subsidiaries (bincluding any agreement with respect to any ongoing or threatened litigation), other than in the ordinary course of business;
(x) any entry into or amendment of any material employment agreement or severance compensation agreement or consulting or similar agreement with, or any material increase in the rate compensation or terms (including any acceleration of the right to receive payment), of compensation benefits payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course any employee of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable (other than agreements terminable without penalty or similar payment by the Company or such Subsidiary, as the case may be, on not more than 30 days' notice and any other increases in compensation payable or to become payable to employees (other than directors or officers) in the ordinary course of business consistent with past practice; or business);
(hxi) any entry into any agreementchange in the financial accounting methods, commitment principles or transaction by the Company which is material to practices of the Company and its Subsidiaries for financial accounting purposes, taken as a whole whole, except as required by GAAP or applicable law;
(xii) any adoption of a plan of or any agreement or arrangement with respect to or resolutions providing for the liquidation, dissolution, merger, consolidation or other reorganization of the Company or any of its Significant Subsidiaries;
(xiii) any settlement or compromise of any Proceeding other than those in which the amount paid does not exceed $5,000,000 individually or in the ordinary course aggregate;
(xiv) any change, condition, occurrence, circumstance or other event that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect; or
(xv) any commitment or agreement to do any of business consistent with past practicethe foregoing, except as otherwise required or expressly permitted by this Agreement.
Appears in 2 contracts
Sources: Investment Agreement (TPG Partners Ii Lp), Investment Agreement (Oxford Health Plans Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letterset forth on Schedule 5.6, since July 31November 30, 19972006 (the "Acquiror Balance Sheet Date"), (i) the Company and Acquiror has conducted its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been occurred (a) any declarationchange, setting aside event or payment of any dividend condition (whether or other distribution in respect of the Shares or any repurchase, redemption or other acquisition not covered by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities insurance) that has resulted in, or other ownership interests would reasonably be expected to result in, the Company or any of its Subsidiariesa Material Adverse Effect on Acquiror; (b) any entry into any employment agreement acquisition, sale or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) transfer of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach material asset of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable Acquiror other than in the ordinary course of business and consistent with past practice; or (hc) any entry into change in accounting methods or practices (including any agreementchange in depreciation or amortization policies or rates) by Acquiror or any revaluation by Acquiror of any of its assets; (d) any declaration, commitment setting aside, or transaction by the Company which is material payment of a dividend or other distribution with respect to the Company and shares of Acquiror or any direct or indirect redemption, purchase or other acquisition by Acquiror of any of its Subsidiaries taken as a whole shares of capital stock; (e) any Material Contract entered into by Acquiror, other than in the ordinary course of business consistent and as provided to Acquiror, or any material amendment or termination of, or default under, any Material Contract (as defined in Section 5.14) to which Acquiror is a party or by which it is bound; (f) any amendment or change to the Certificate of Incorporation or Bylaws of Acquiror; (g) any increase in or modification of the compensation or benefits payable or to become payable by Acquiror to any of its directors, executive officers, or, other than in the ordinary course of business, employees; or (h) any negotiation or agreement by Acquiror to do any of the things described in the preceding clauses (a) through (g) (other than negotiations with past practiceAcquiror and its representatives regarding the transactions contemplated by this Agreement). At the Effective Time, there will be no accrued but unpaid dividends on shares of Acquiror's capital stock.
Appears in 2 contracts
Sources: Merger Agreement (Convio, Inc.), Merger Agreement (Convio, Inc.)
Absence of Certain Changes. Except as for transactions contemplated by the Transaction Agreements (including, without limitation, transactions expressly permitted pursuant to Section 7.02 hereof), transactions with respect to which the Investor shall have given its prior written consent, or transactions disclosed in the SEC Reports (as defined Reports, on Schedule 3.09 hereto or in Section 4.05) filed with the SEC prior Proposed Asset Sale Letter, from September 30, 1998 to the date hereof or Initial Closing, the Company and its Significant Subsidiaries have conducted their business in Section 4.04 the ordinary and usual course, and there has not been any of the Disclosure Letter, since July 31, 1997, following:
(i) any change or amendment to the Certificate of Incorporation or Bylaws or the certificate or articles of incorporation, bylaws or other organizational documents of any Significant Subsidiaries of the Company;
(ii) any issuance or sale, or any direct or indirect purchase, redemption or other acquisition of any shares of their respective Equity Securities or any Derivative Securities by the Company or any of its Significant Subsidiaries, other than pursuant to this Agreement, the Company Warrants or the Option Plans;
(iii) any dividend or other distribution declared, set aside, paid or made with respect to their respective Equity Securities by the Company or any of its Significant Subsidiaries, except (x) dividends or other distributions made to the Company or to any Subsidiary of the Company and (y) dividends and distributions declared, set aside, paid or made by any joint venture in which the Company or any Significant Subsidiary owns an equity interest, which dividends and distributions were declared, set aside, paid or made in accordance with the organizational documents or related service agreements of such joint venture as in effect on the date of such payment;
(iv) any acquisition or disposition of assets by the Company and its Subsidiaries have not suffered any Material Adverse Effect having a fair value or any changefor a purchase price in excess of $5,000,000, conditionin the aggregate, event other than acquisitions or development that could reasonably be expected to have a Material Adverse Effect, (ii) dispositions made in the ordinary course of business and acquisitions or dispositions among the Company and its Subsidiaries have conducted their respective businesses only or among such Subsidiaries;
(v) any increase in excess of $5,000,000 in the ordinary course consistent with past practiceIndebtedness of the Company and its Subsidiaries, except taken as a whole, other than (x) advances to the Company pursuant to the revolving credit facility under the Credit Agreement in connection with an amount not in excess of $60,000,000, in the negotiation and execution and delivery of this Agreementaggregate, outstanding at any time and (iiiy) there has not been changes in inter-company Indebtedness among the Company and its Subsidiaries or among Subsidiaries of the Company, which changes were permitted under the Credit Agreement (aas in effect on the date hereof);
(vi) any declaration, setting aside or payment amendment of any dividend mortgage, Lien, lease, Regulatory Approval, loan agreement, indenture or other distribution in respect agreement, instrument or document, which amendment is material to the Company and its Subsidiaries, taken as a whole;
(vii) any default, event of the Shares default or breach (or any repurchaseevent which, redemption with notice or other acquisition the passage of time or both, would constitute a default, event of default or breach) by the Company or any of its Subsidiaries of any outstanding shares of capital stock credit, financing or other securities inagreement or instrument relating to any Indebtedness (including, without limitation, the Credit Agreement or the Indenture), which default, event of default or breach is material to the Company and its Subsidiaries, taken as a whole;
(viii) any damage, destruction, theft or other casualty loss (whether or not covered by insurance) that is material to the Company and its Subsidiaries taken as a whole;
(ix) any commitment, agreement or transaction entered into, amended, or other ownership interests in, terminated (or any waiver of any rights or remedies under any of the foregoing) by the Company or any of its Subsidiaries (including any agreement with respect to any ongoing or threatened litigation) that is material to the Company and its Subsidiaries; , taken as a whole, other than in the ordinary course of business;
(bx) any entry into or amendment of any employment agreement material employment, severance, compensation, consulting, retention, change of control or severance compensation similar agreement with, or any material increase in the rate compensation or terms (including any acceleration of the right to receive payment), of compensation benefits payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course any employee of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable (other than agreements terminable without penalty or similar payment by the Company or such Subsidiary, as the case may be, on not more than 30 days' notice and increases in compensation payable or to become payable to employees (other than directors or officers) in the ordinary course of business consistent with past practice; or );
(hxi) any entry into any agreementchange in the financial accounting methods, commitment principles or transaction by the Company which is material to practices of the Company and its Subsidiaries taken for financial accounting purposes, except as a whole required by GAAP or applicable Law;
(xii) any adoption of any agreement or understanding with respect to any Control Transaction, merger, consolidation or other reorganization with respect to the Company or any of its Significant Subsidiaries, or any adoption of any plan, agreement or arrangement with respect to, or resolutions providing for, the liquidation or dissolution of the Company or any of its Significant Subsidiaries;
(xiii) any settlement or compromise of any Proceeding other than those in which the amount paid (to the extent not reimbursed with the proceeds of any Policy) does not exceed $2,000,000;
(xiv) any change, condition, occurrence, circumstance or other event that, individually or in the ordinary course aggregate, has had or is reasonably likely to have a Material Adverse Effect; or
(xv) any commitment or agreement to do any of business consistent with past practicethe foregoing, except as otherwise required or expressly permitted by this Agreement.
Appears in 2 contracts
Sources: Investment Agreement (TPG Advisors Ii Inc), Investment Agreement (Magellan Health Services Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof expressly permitted or in Section 4.04 of the Disclosure Lettercontemplated by this Agreement, since July December 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) 2007 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with and the negotiation and execution and delivery of this AgreementCompany has not suffered a Company Material Adverse Effect, and (iii) since December 31, 2007 until the date hereof there has not been (ai) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Shares Company or any repurchaseof its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or any other securities in, or other ownership interests in, of the Company or any of its Subsidiaries; Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (bother than acquisitions of Shares in connection with the surrender of Shares by holders of Company Options or Warrants in order to pay the exercise price thereof), (iii) any entry into split, combination or reclassification of any employment agreement or severance compensation agreement with, capital stock of the Company or any increase of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in the rate respect of, in lieu of or terms in substitution for shares of their respective capital stock, (including iv) (A) any acceleration of the right to receive payment), of compensation payable or to become payable granting by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course any Specified Participant of business in accordance with its customary past practices; (c) any increase in the rate compensation, bonus or terms (including fringe or other benefits or any acceleration granting of the right any type of compensation or benefits to any Specified Participant not previously receiving or entitled to receive payment) such type of compensation or benefit, except as was required under any agreement or Benefit Plan in effect as of December 31, 2007, (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (dB) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation granting by the Company or any of its Subsidiaries to any director, officer, employee or consultant of any right to receive, or any increase in, change of their respective assetscontrol, including write-downs of inventory retention, severance or of accounts receivable other than in the ordinary course of business consistent with past practice; termination compensation or benefits, (hC) any entry into any agreement, commitment or transaction by the Company which is material to or any of its Subsidiaries into, or any amendment or termination of (1) any employment, deferred compensation, consulting, severance, change of control, termination, retention, indemnification, loan or similar agreement between the Company or any of its Subsidiaries, on the one hand, and any Specified Participant, on the other hand, or (2) any agreement between the Company or any of its Subsidiaries, on the one hand, and any Specified Participant, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Specified Benefit Agreements”), (D) any payment of any compensation or benefit under, or the grant of any award under, any bonus, incentive, performance or other compensation plan or arrangement, Specified Benefit Agreement, Equity Plan or Benefit Plan, except as required to comply with applicable Law or any Specified Benefit Agreement, Equity Plan or Benefit Plan in effect as of December 31, 2007, (E) the taking of any action to fund or in any other way secure the payment of compensation or benefits under any Equity Plan, Benefit Plan or Specified Benefit Agreement (except as required by a Benefit Plan as in effect on December 31, 2007) or (F) the taking of any action to accelerate the vesting or payment of any compensation or benefits under any Equity Plan, Benefit Plan or Specified Benefit Agreement, (v) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate would have a Company Material Adverse Effect, (vi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vii) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability. Since December 31, 2007, neither the Company nor any of its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicehave incurred indebtedness.
Appears in 2 contracts
Sources: Merger Agreement (Omrix Biopharmaceuticals, Inc.), Merger Agreement (Johnson & Johnson)
Absence of Certain Changes. Except as disclosed in (a) Since the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997Balance Sheet Date, (i) the Company and each of its Subsidiaries have has carried on and operated its businesses in all material respects in the ordinary course of business consistent with past practices and (ii) there has not suffered any Material Adverse Effect or any been, and no change, conditionevent, event effect or development occurrence has taken place that could would reasonably be expected expected, individually or in the aggregate, to have a Material Adverse Effect.
(b) Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has:
(i) (A) redeemed, purchased or otherwise acquired any of its outstanding Equity Interests, or any rights, warrants or options to acquire any Equity Interests; or (B) declared, set aside for payment or paid any dividend on, or made any other distribution in respect of, any Equity Interests;
(ii) the Company and sold or otherwise disposed of any of its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practicematerial properties or assets, except (A) (1) sales, leases, and rentals of inventory, (2) non-exclusive licenses in connection therewith and (3) sale-leaseback transactions in connection with the negotiation and execution and delivery of this Agreement“Airports” business, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring each case in the ordinary course of business in accordance consistent with its customary past practices; , (cB) any increase pursuant to Contracts in force on the date of this Agreement and set forth in the rate Company Disclosure Schedule, (C) dispositions of obsolete assets or terms (including D) transfers among the Company and its wholly-owned Subsidiaries;
(iii) increased in any acceleration of material respect the right to receive payment) salary, benefits, bonuses or other compensation of any Plan (as hereinafter defined) of its current or any other bonusformer directors, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directorsconsultants, officers or employees, other than (A) as required pursuant to applicable Law or the terms of Contracts in effect on the date of this Agreement and set forth in the Company Disclosure Schedule; or (B) increases in salaries, wages and benefits of employees made in the ordinary course of business consistent with past practices;
(A) exercised any discretion to accelerate the vesting or payment of any compensation or benefit under any Company Plan; (dB) paid any action by transaction-related bonuses, severance or other similar amounts to employees of the Company whichCompany, if taken after its Subsidiaries, the date hereof, would constitute a breach of Shareholders or any of the clauses of Section 6.01 hereoftheir respective Affiliates; or (eC) granted any change by the new awards under any Company Plan;
(v) made any material changes in financial or tax accounting methods, principles or practices except (or changed an annual accounting period), including a change in the methods, principles or practices related to the revaluing of any assets or writing off receivables or reserves;
(vi) adopted a plan or agreement of complete or partial liquidation or dissolution;
(vii) entered into any new material line of business;
(viii) made any acquisition of or material investment in any other business or Person, by purchase or other acquisition of Equity Interests, by merger, consolidation, asset purchase or other business combination, or by formation of any joint venture or other business organization or by contributions to capital;
(ix) settled or compromised any Action that is material to the Company and its Subsidiaries (taken as a whole);
(x) entered into any agreement in respect of Taxes, changed or made any Tax elections (unless required by changes applicable Law), filed any material amended Tax Return, settled or compromised any material Tax liability or consented to any extension or waiver of the limitation period applicable to any claim or assessment in United States generally accepted accounting principles; respect of Taxes;
(fxi) made any labor disputematerial capital expenditures other than in the ordinary course of business consistent with past practice or in accordance with the Company’s current capital expenditure budget disclosed to the Purchaser prior to the date hereof;
(xii) incurred, created or become liable for any Indebtedness (A) of the type described in clauses (i), (ii), (v), (with respect to interest rate swap obligations) (vii), or (with respect to any of the foregoing) (viii) of the definition thereof, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees Credit Facility Indebtedness (and interest rate swap obligations in connection therewith under Contracts in effect on the date of this Agreement and set forth in the Company Disclosure Schedule); or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (gB) any revaluation by the Company or any of its Subsidiaries material Indebtedness of any of their respective assets, including write-downs of inventory or of accounts receivable other type other than in the ordinary course of business consistent with past practice; ;
(xiii) forgiven or waived any material Indebtedness outstanding against a Third Party;
(hxiv) made any entry material loans or advances to, or investments in, any Third Party;
(xv) entered into any agreementmaterial transaction with any Third Party other than on arm’s length terms, commitment to the extent the amount received or transaction paid by the Company which is material to the Company and or any of its Subsidiaries taken as a whole is less than or exceeds, respectively, the amount which would be received or paid if at arm’s-length, including, without limitation, the forgiveness of any material claims against Third Parties not on an arm’s-length basis;
(xvi) made any material gift or other than in material gratuitous payment out of the ordinary course of business consistent business; or
(xvii) entered into any Contract pursuant to which, in connection with past practicea Third Party providing surety bonds, performance guarantees or any similar obligations for the benefit of the Company or any of its Subsidiaries, such Third Party (A) is entitled to be provided with any material assets of the Company or any of its Subsidiaries as collateral or (B) is expressly entitled to provide or withhold its consent to a change of control of the Company or its Subsidiaries (or as a result of such a change of control, the Third Party would be entitled to terminate or modify such Contract); or
(xviii) agreed to take any of the foregoing actions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (American Airlines Inc), Stock Purchase Agreement (Amr Corp)
Absence of Certain Changes. Since December 31, 2006 until the date hereof, there has not occurred any change, event or circumstance that has had or would be reasonably expected to have a Company Material Adverse Effect. Except as disclosed in the SEC Reports (as defined expressly contemplated by this Agreement or set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 4.14 of the Company Disclosure Letter, since July December 31, 19972006 until the date hereof, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course generally consistent with past practicepractices in all material respects and none of the Company or its Subsidiaries has:
(a) amended its Certificate of Incorporation, except in connection with By-Laws or other organizational documents;
(b) adopted a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization;
(c) (i) issued, sold, transferred, or otherwise disposed of any shares of its capital stock, or other voting securities or any securities convertible into or exchangeable for any of the negotiation and execution and delivery foregoing, (ii) granted or issued any options, warrants, securities or rights that are linked to the value of this Agreementthe Company Common Stock, and or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, (iii) there has not been (a) any declarationdeclared, setting set aside or payment of paid any dividend or other distribution with respect to any shares of its capital stock, or (iv) redeemed, purchased or otherwise acquired any shares of its capital stock or any rights, warrants or options to acquire any such shares or effected any reduction in capital, except (with respect to clauses (i) through (iv) above) for: (A) issuances of capital stock of the Shares or any repurchase, redemption or other acquisition by Company’s Subsidiaries to the Company or any a wholly owned Subsidiary of its Subsidiaries the Company, (B) issuances of any outstanding shares of Company Common Stock upon exercise of employee stock options, upon vesting of restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or other securities inwithholding with respect to the foregoing, (C) grants made pursuant to Company Plans or other ownership interests in, the Company Stock Plan and (D) dividends or distributions by any Subsidiary of the Company to the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration a wholly owned Subsidiary of the right Company;
(d) entered into or consummated any transaction involving the acquisition (including, without limitation, by merger, consolidation or acquisition of the business, stock or all or substantially all of the assets or other business combination) of any other Person for consideration to receive payment)such Person in excess of $500,000 (other than purchases of inventory or acquisitions of real property, of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring fixtures and equipment in the ordinary course of business in accordance generally consistent with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; practice);
(e) any change by the Company in accounting methodssold, principles leased, licensed or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries otherwise disposed of any fixed assets or personal property for consideration in excess of their respective assets$500,000, including write-downs (i) except pursuant to existing Contracts, (ii) for sales of inventory or of accounts receivable other than inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; , or (hiii) pursuant to any entry into Company Tenant Leases; or
(f) changed any agreementof its material accounting policies or practices, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken except as required as a whole other than result of a change in GAAP or the ordinary course rules and regulations of business consistent with past practicethe SEC.
Appears in 2 contracts
Sources: Merger Agreement (Grubb & Ellis Co), Merger Agreement (Thompson Anthony W)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letterexpressly contemplated by this Agreement, since July December 31, 19971999, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than in accordance with, the ordinary and usual course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreementthese businesses, and (iii) since December 31, 1999 there has not been (ai) any change in the financial condition, properties, business or results of operations of the Company and its Subsidiaries except those changes that, individually or in the aggregate, have not had and would not have a Material Adverse Effect on the Company; (ii) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of the Shares Company's capital stock or any repurchasesecurities convertible, redemption exchangeable or exercisable for or into shares of its capital stock, except for (w) regular quarterly cash dividends of no more than U.S. $.025 per Company Common Share, (x) dividends in respect of the Company Money Market Preferred Shares in accordance with their terms, and (y) interest payments in respect of the Company Convertible Notes in accordance with their terms; (iii) any redemption, repurchase or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of the Company's capital stock or any securities convertible, exchangeable or exercisable for or into shares of its capital stock (other securities inthan as required by the terms of any Company Stock Plan and other than repurchases of Company Money Market Preferred Shares for not more than the Preferred Consideration per share), or other ownership interests in, the Company or any of its Subsidiaries; (biv) any entry into any employment agreement change by it in accounting principles, practices or severance compensation agreement withmethods except as required by changes in U.S. GAAP. Between December 31, or 1999 and the date of this Agreement, except as contemplated by this Agreement, there has not been any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to that could become payable by the Company or any of its Subsidiaries to, their respective directors, to officers or key employees, except other than increases to employees who are not officers or directors occurring in the ordinary and usual course of business in accordance business, and the Company has not entered into or amended any of its compensation or benefit plans or agreements, including severance, change of control or similar plans and agreements. Since December 31, 1999, the Company has granted awards under its performance share plan implemented pursuant to the Company's 1997 Incentive Compensation Plan and under similar plans to the categories of persons with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right performance targets) applicable to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of these awards set forth in Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees 2.1.6 of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by Disclosure Schedule. Section 2.1.6 of the Company or any Disclosure Schedule sets forth the estimated total value of its Subsidiaries the awards payable solely as a result of any a change of their respective assets, including write-downs of inventory or of accounts receivable other than control and the amount reflected in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material Company's budget for 2000 previously delivered to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceParent.
Appears in 2 contracts
Sources: Merger Agreement (Young & Rubicam Inc), Merger Agreement (WPP Group PLC)
Absence of Certain Changes. Except as disclosed in From the SEC Reports (as defined in Section 4.05) filed with the SEC prior Balance Sheet Date to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997Agreement Date, (i) each of the Company and its Subsidiaries have has conducted its business in all material respects in the ordinary course of business consistent with past practice and without prejudice to the foregoing and (ii) there has not suffered been with respect to the Company or any of its Subsidiaries any:
(a) Material Adverse Effect Effect;
(b) damage, destruction or any changeloss, conditionwhether or not covered by insurance, event which has had or development that could reasonably be expected to have a Material Adverse Effect, ;
(iic) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of the Shares of, its capital stock, or any repurchasesplit, combination or recapitalization of its capital stock or any redemption or other acquisition by the Company or repurchase of any of its Subsidiaries of any outstanding shares of capital stock or other securities inany change in any rights, preferences or other ownership interests in, the Company or privileges of any of its Subsidiaries; outstanding capital stock (bother than repurchases of stock in accordance with each Company Option Plan or applicable Contracts in connection with the termination of service of employees or other service providers);
(d) incurrence, creation or assumption of (i) any entry into Encumbrance on any employment agreement of its assets or severance compensation agreement withproperties (other than Permitted Encumbrances), (ii) any liability for any Debt or (iii) any liability as a guarantor or surety with respect to the obligations of others;
(e) increase in the rate or terms (including any acceleration of the right to receive payment), of cash compensation payable or to become payable by the Company or to any of its Subsidiaries toofficers, their respective directors, officers directors or employees, except employees (other than increases to in the base salaries of employees who are not officers in an amount that does not exceed 10% of such base salaries), or increase in, or establishment of, any cash bonus, pension, severance, retention, insurance or other benefit payment or arrangement with respect to any of such officers, directors occurring or employees, or any modification of any “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and Treasury Regulations or guidance thereunder;
(f) material change with respect to its executive management personnel, or any termination of employment of a material number of employees;
(g) making by it of any new loans or extension of existing loans to any officers, directors or employees (other than routine expense advances to employees consistent with past practice);
(h) sale, license, assignment or other disposition or transfer of any of its material assets or properties, other than the sale or non-exclusive license of its products or services in the ordinary course of business in accordance with its customary past practices; business;
(ci) any increase in the rate or terms (including any acceleration deferral of the right to receive payment) payment of any Plan accounts payable (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business business, consistent with past practice; practices) or (hii) any entry into any agreementdiscount, commitment accommodation or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other concession made (other than in the ordinary course of business business, consistent with past practicepractices) in order to accelerate or induce the collection of any receivable;
(j) any material election or change in a material election in respect of Taxes, entrance into any Tax sharing, allocation, indemnification or similar agreement, entrance into any closing agreement with any Governmental Authority, settlement of any claim or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, amendment to any Return, application for or pursuit of any Tax ruling, or change in any Tax identification number;
(k) except as required by U.S. GAAP, any change in accounting methods or any revaluation of any of its assets; or
(l) any entry into any Contract to do any of the things described in the preceding clauses (a) through (k) (other than negotiations and agreements with Parent and its Representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (MINDBODY, Inc.)
Absence of Certain Changes. Except as disclosed set forth in Schedule 4.16 or as expressly provided for elsewhere herein, Compression has not, since the date of the Compression Latest Balance Sheet:
(a) incurred any Indebtedness except Intercompany Indebtedness, (b) permitted any of its assets to be subjected to any Lien, other than a Permitted Lien, (c) sold, transferred or otherwise disposed of any assets, other than (i) sales of equipment on or after the Compression Latest Balance Sheet Date and prior to December 31, 1997 that are in the SEC Reports ordinary course of business and (as defined in Section 4.05ii) filed with the SEC prior sales of Compression equipment pursuant to the date hereof exercise (in accordance with their terms) of purchase options under existing leases of Compression equipment, and except for sales or trade-ins of vehicles in Section 4.04 the ordinary course of business, (d) merged or consolidated with any other entity, (e) made any material capital expenditure or commitment therefor except in the Disclosure Letterordinary course of business, since July 31(f) declared, 1997set aside, increased or paid any dividend or declared or made any distribution on any shares of its capital stock, or redeemed, reclassified, purchased or otherwise acquired any shares of its capital stock or authorized or issued any shares of its capital stock or any option, warrant or other right to purchase or acquire any such shares, (g) made any loan to any Person other than intercompany loans that are included within Intercompany Indebtedness, (h) written off as uncollectible any notes or accounts receivable, except for write-offs in the ordinary course of business charged to applicable reserves, (i) waived any rights or settled any claims, except for such waivers or settlements granted or entered into in the Company and ordinary course of business, (j) granted any increase in the rate of wages, salaries or other compensation or benefits to any of its Subsidiaries have employees, other than increases or payments in the ordinary course of its business consistent with past practice, (k) made any change in any method of accounting practice, (l) amended its certificate of incorporation or by-laws, (m) suffered or incurred any damage, destruction, fire, explosion, accident, flood, or other casualty loss or act of God (whether or not covered by insurance) that has had a Material Adverse Effect, (n) amended or terminated, or suffered any Material Adverse Effect amendment or termination of, any changePermit, conditioncontract, event lease, license, purchase order or development similar commitment or right that could reasonably be expected is likely to have a Material Adverse Effect, (iio) the Company and amended or modified in any respect any Benefit Arrangement or Employee Plan, (p) suffered any labor disturbances that is likely to have a Material Adverse Effect, (q) otherwise failed to operate its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except in connection with practices so as to preserve its business organization intact and to preserve the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares or any repurchase, redemption or other acquisition by the Company or any goodwill of its Subsidiaries of any outstanding shares of capital stock or other securities incustomers, suppliers, employees and others with whom it has business relations, or other ownership interests in, the Company or any of its Subsidiaries; (br) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right agreed to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of do any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceforegoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Universal Compression Inc), Stock Purchase Agreement (Universal Compression Holdings Inc)
Absence of Certain Changes. Except as disclosed in Since April 2, 2006, except for actions expressly contemplated by this Agreement, the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 business of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changehas been conducted, conditionin all material respects, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been or occurred or there does not exist, as the case may be:
(a) any Company Material Adverse Effect;
(b) other than cash dividends made by any wholly owned Subsidiary of the Company to the Company or one of its Subsidiaries, any split, combination or reclassification of any shares of capital stock, declaration, setting aside or payment paying of any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any shares of capital stock of the Shares Company or any repurchaseSubsidiary;
(c) any damage, destruction or other casualty loss (whether or not covered by insurance) with respect to any Assets that, individually or in the aggregate, are material to the Company and its Subsidiaries, taken as a whole;
(d) any change in any method of accounting or accounting principles or practice, or Tax election, by the Company or any of its Subsidiaries, except for any such change required by reason of a change in GAAP, other applicable generally accepted accounting principles or regulatory accounting principles;
(e) any amendment of the Company’s certificate of incorporation or bylaws;
(f) except for any transactions permitted by Section 5.2(c) hereof, any acquisition, redemption or other acquisition amendment of any Company Securities or Subsidiary Securities;
(g) (i) any incurrence or assumption of any long-term or short-term debt or issuance of any debt securities by the Company or any of its Subsidiaries except for short-term debt incurred to fund operations of any outstanding shares of capital stock the business or other securities in, or other ownership interests in, owed to the Company or any of its wholly-owned Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment)each case, of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or , (hii) any entry into assumption, guarantee or endorsement of the obligations of any agreement, commitment other Person (except direct or transaction indirect wholly-owned Subsidiaries of the Company) by the Company which is material to or any of its Subsidiaries, (iii) any loan, advance or capital contribution to, or other investment in, any other Person by the Company and or any of its Subsidiaries taken as a whole (other than customary loans or advances to employees or direct or indirect wholly-owned Subsidiaries, in each case in the ordinary course of business consistent with past practice) or (iv) any mortgage or pledge of the Company’s or any of its Subsidiaries’ assets, tangible or intangible, or any creation of any Lien thereupon (other than Permitted Encumbrances); or
(h) any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger).
Appears in 2 contracts
Sources: Merger Agreement (Micro Linear Corp /Ca/), Merger Agreement (Sirenza Microdevices Inc)
Absence of Certain Changes. Except as disclosed Since June 30, 2018 there has not occurred any event, change or circumstance that, individually or in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof aggregate, has had or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could would reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 4.07, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practicesince June 30, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) 2018 there has not been any:
(a) damage or destruction affecting any declarationportion of the material Assets or properties of the Company;
(b) change in the Company’s accounting policies, setting aside procedures or methodologies;
(c) sale or transfer of any tangible or intangible Asset of the Company, except in the Ordinary Course of Business;
(d) mortgage, pledge or imposition of any Encumbrances (except for Permitted Encumbrances) on any Asset of the Company;
(e) declaration or payment of any dividend or other distribution in respect of any Equity Securities of the Shares Company or, directly or indirectly, any repurchasepurchase, redemption redemption, issuance, or other acquisition or disposition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assetsEquity Securities;
(f) increase in the salary, including write-downs benefits or other compensation payable to any of inventory the employees or consultants or officers or directors of accounts receivable the Company, or commitment to pay any bonus or other additional salary, benefits or compensation to any of the employees or consultants or officers or directors of the Company, or any entry into, grant, adoption, amendment or termination of any Employee Plan in any manner, except as otherwise required by Law;
(g) incurrence of any capital expenditure, obligation or other liability in connection therewith by the Company other than in the ordinary course Ordinary Course of business consistent with past practice; or Business not in excess of $25,000;
(h) any entry into any agreement, commitment or transaction acquisition by the Company which is of a Person (including by merger, consolidation or stock purchase), or any acquisition of a substantial portion of the Assets of any business of any other Person;
(i) discharge or satisfaction by the Company of any material Encumbrance or material liability, other than Liabilities discharged or satisfied in the Ordinary Course of Business;
(j) amendment to the Governing Documents of the Company;
(k) incurrence, assumption or prepayment of any Debt by the Company, including long term Debt or the issuance of any debt securities;
(l) assumption, guarantee, endorsement or otherwise becoming liable or responsible, whether directly, contingently or otherwise, by the Company and for the Debt of any other Person;
(m) making of any loans, advances or capital contributions to or investments in any other Person by the Company;
(n) entry into, amendment or termination of, or waiver of any rights under, any Material Contract;
(o) initiation, settlement or compromise by or against the Company of any pending or threatened Proceeding;
(p) making, changing or rescinding by the Company of any election relating to Taxes, settlement or compromise by the Company of any claim, action, suit, litigation, Proceeding, arbitration, investigation, or audit controversy relating to Taxes, consent by the Company to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, filing by the Company of any Tax Return, amendment of any Tax Return by the Company or making by the Company of any change to any of its Subsidiaries taken as a whole other than respective methods of accounting in respect of Taxes;
(q) excess sales of inventory or return privileges granted to any customer of the ordinary course of business consistent Company with past practicerespect thereto (whether explicitly or through favorable concessions granted to the customer); or
(r) agreement or commitment entered into by the Company to do any act described in clauses (a) through (q) above.
Appears in 2 contracts
Sources: Contribution Agreement (Greenlane Holdings, Inc.), Contribution Agreement (Greenlane Holdings, Inc.)
Absence of Certain Changes. Except as disclosed in Schedule 3.9, during the SEC Reports (as defined in Section 4.05) filed with period from the SEC prior Balance Sheet Date to the date hereof or hereof, the business of ASFC and its Subsidiaries has been conducted in Section 4.04 of the Disclosure Letterordinary course consistent with past practices (including but not limited to with regard to underwriting, since July 31pricing, 1997, actuarial and investment policies generally) and there has not been:
(i) the Company and its Subsidiaries have not suffered any Material Adverse Effect event, occurrence, development or any change, condition, event state of circumstances or development that could facts which has had or would reasonably be expected to have a Material Adverse EffectEffect on ASFC, other than (A) those affecting the property and casualty insurance industry as a whole, (B) Catastrophes or (C) changes in general economic conditions (including but not limited to changes in interest rates);
(ii) a decline in ASFC's GAAP equity of more than 10%; provided, that in determining whether the Company and its Subsidiaries have conducted their respective businesses only representation set forth in this Section 3.9(ii) has been satisfied, changes in ASFC's GAAP equity after March 31, 1997 resulting from FAS 115 mark-▇▇-market accounting shall be excluded from the ordinary course consistent with past practice, except in connection with calculation of ASFC's GAAP equity on the negotiation and execution and delivery of this Agreement, and date hereof;
(iii) there has other than the declaration or payment of ASFC's regular quarterly dividend in an amount not been (a) in excess of $0.21 per share, any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the Shares capital stock of ASFC, or any repurchase, redemption or other acquisition by the Company ASFC or any Subsidiary of its Subsidiaries ASFC of any outstanding shares of capital stock or other securities inof, or other ownership interests in, the Company ASFC or any Subsidiary of its Subsidiaries; ASFC;
(biv) any entry into incurrence, assumption or guarantee by ASFC or any employment agreement Subsidiary of ASFC of any indebtedness for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practices;
(v) any transaction or severance compensation agreement withcommitment made, or any increase contract or agreement entered into, by ASFC or any Subsidiary of ASFC (including the acquisition or disposition of any assets) or any relinquishment by ASFC or any Subsidiary of ASFC of any contract or other right, other than transactions and commitments in the rate ordinary course of business consistent with past practices;
(vi) any change in any method of accounting or terms accounting practice or policy (including but not limited to any acceleration reserving method, practice or policy) by ASFC or any Subsidiary of ASFC, except for any such change (A) as a result of a concurrent change in GAAP or SAP or (B) that is not material to ASFC and its Subsidiaries, taken as a whole;
(vii) to the extent payable directly or indirectly by ASFC or any Subsidiary of ASFC, other than the Incentive Letter Agreements, any (A) employment, deferred compensation, severance, retirement or other similar agreement entered into with any director, officer or employee of ASFC (or any amendment to any such existing agreement), (B) grant of any severance or termination pay to any director, officer or employee of ASFC other than in the ordinary course of business, (C) change in compensation or other benefits payable to any director, officer or employee of ASFC, other than changes in base compensation and bonuses, and changes in benefits in accordance with plans or arrangements in effect as of the right Balance Sheet Date, in the ordinary course of business consistent with past practice, or (D) loans or advances to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers in connection with transfer or directors occurring for ordinary travel and business expenses in the ordinary course of business in accordance consistent with its customary past practices; practice;
(cviii) to the Knowledge of ASFC, any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) transaction by ASFC or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach Subsidiary of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable ASFC involving ASFC Investment Assets other than in the ordinary course of business consistent with past practice; or ;
(hA) any entry entering into of any agreementfacultative reinsurance contract, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice, (B) any commutation of any facultative reinsurance contract, or (C) any entering into or any commutation of any reinsurance treaty, purchased by any Subsidiary of ASFC;
(x) any investment made in ASFC Investment Assets other than in accordance with the investment policies of ASFC or any Subsidiary of ASFC set forth in Schedule 3.9(x); or
(xi) any agreement or commitment (contingent or otherwise) by ASFC or any Subsidiary of ASFC to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (American States Financial Corp), Merger Agreement (Lincoln National Corp)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 set forth on Schedule 3.7 of the Company Disclosure LetterSchedule, since July 31Company Balance Sheet Date through the Execution Date, 1997, there has not occurred any:
(ia) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development condition (whether or not covered by insurance or similar indemnification agreement) that could has resulted in, or would reasonably be expected to have result in, a Company Material Adverse Effect;
(b) acquisition, sale or transfer of any material asset of Company or any of its Subsidiaries;
(iic) the change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company and or any revaluation by Company of any of its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery or any of this Agreement, and its Subsidiaries’ assets;
(iiid) there has not been (a) any declaration, setting aside aside, or payment of any a dividend or other distribution in with respect to the shares of the Shares Company’s capital stock, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by Company of any of its shares of capital stock, other than in connection with Unvested Company Stock;
(e) material contract entered into by Company or any of its Subsidiaries, or any material amendment or (except by way of lapse of the term thereof) termination of, or default under, any material contract to which Company or any of its Subsidiaries is a party or by which it is bound;
(f) action to amend or change the Certificate of any outstanding shares Incorporation or Bylaws of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; Company;
(bg) any entry into any employment agreement or severance compensation agreement with, or any material increase in the rate compensation, including severance compensation, or terms (including any acceleration of the right to receive payment), of compensation benefits payable or to become payable by the Company or to any of its Subsidiaries to, their respective directors, officers directors or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent and as contemplated by this Agreement or increases associated with past practice; merit or (h) any entry into any agreement, commitment annual pay increases or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than promotions in the ordinary course of business consistent business;
(h) transaction with past practiceany affiliate of the Company which is not a Subsidiary of the Company;
(i) incurrence, creation or assumption by Company of (1) any Encumbrance on any of the assets or properties of Company, (2) obligation or liability or indebtedness for borrowed money, or (3) any contingent liability as a guarantor or surety with respect to the obligation of others;
(j) acceleration or release of any vesting condition to the right to exercise any option, warrant or other right to purchase or otherwise acquire any shares of Company’s capital stock, or any acceleration or release of any right to repurchase shares of Company’s capital stock upon any stockholder’s termination of employment or services with Company or pursuant to any right of first refusal, other than acceleration or release of vesting conditions that occur pursuant to, in connection with or are contemplated by this Agreement;
(k) damage, destruction or loss of any material property or asset, whether or not covered by insurance;
(l) change with respect to “officers” of Company (as such term is defined in Rule 3b-2 of the Exchange Act); or
(m) negotiation or agreement by Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (l) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the agreements disclosed herein).
Appears in 2 contracts
Sources: Merger Agreement (Authorize.Net Holdings, Inc.), Agreement and Plan of Reorganization (Cybersource Corp)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05a) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since December 31, 19972007, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practicepractice in all material respects, except and (ii) there has not occurred or continued to exist any event, change, occurrence, effect, fact, circumstance or condition which, individually or in connection with the negotiation and execution and delivery aggregate, has had, or is reasonably likely to have or result in, a Material Adverse Effect on the Company.
(b) Since December 31, 2007 to the date of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares or any repurchase, redemption or other acquisition by neither the Company or nor any of its Subsidiaries of any outstanding shares of capital stock has (i) (A) increased or other securities inagreed to increase the wages, salaries, compensation, pension, or other ownership interests infringe benefits or perquisites payable to any officer, employee or director from the Company or any amount thereof in effect as of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement withDecember 31, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring 2007 other than in the ordinary course of business in accordance consistent with its customary past practices; , (cB) except as set forth in Section 3.7(b) of the Company Disclosure Letter, granted any increase severance or termination pay or entered into any contract to make or grant any severance or termination pay (other than in the rate ordinary course of business substantially consistent with past practices or pursuant to pre-existing plans or arrangements), (C) entered into or made any loans to any of its officers, directors or employees or made any change in its borrowing or lending arrangements for or on behalf of any of such Persons whether pursuant to an employee benefit plan or otherwise (except for loans pursuant to the terms (including any acceleration of the right to receive paymentCompany’s or its affiliates’ retirement plans and routine travel advances), or (D) of adopted or amended any Plan new or existing Company Benefit Plan, (as hereinafter definedii) declared, set aside or paid any other bonus, severance, insurance, pension dividend or other employee benefit plandistribution (whether in cash, payment stock or arrangement made toproperty) with respect to any of the Company’s capital stock, for (iii) effected or with authorized any such directorssplit, officers combination or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach reclassification of any of the clauses Company’s capital stock or any issuance thereof or issued any other securities in respect of, in lieu of Section 6.01 hereof; or in substitution for shares of the Company’s capital stock, except for issuances of Company Common Stock (e1) upon the exercise of Company Options or vesting of Company Awards, in each case in accordance with their terms at the time of exercise or (2) in connection with recruitment activities in the ordinary course of business consistent with past practice, (iv) changed in any change by the Company material respect, or has knowledge of any reason that would have required or would require changing in any material respect, any accounting methodsmethods (or underlying assumptions), principles or practices of the Company or its Subsidiaries, including any material reserving, renewal or residual method, practice or policy, except as required by changes GAAP or by applicable Law, (v) made any material Tax election or settled or compromised any material income Tax liability, (vi) made any material change in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees the policies and procedures of the Company or its Subsidiaries in connection with trading activities, (vii) sold, leased, exchanged, transferred or otherwise disposed of any Subsidiarymaterial Company Asset other than in the ordinary course of business consistent with past practices, which employees were not then subject to a collective bargaining agreement (viii) revalued, or has knowledge of any lockoutsreason that would have required or would require revaluing, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by of the Company or Assets in any of its Subsidiaries material respect, including writing down the value of any of their respective assets, including write-downs of inventory the Company Assets or of writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice; practices, or (hix) made any entry into agreement or commitment (contingent or otherwise) to do any agreement, commitment or transaction by of the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Bois D Arc Energy, Inc.), Merger Agreement (Stone Energy Corp)
Absence of Certain Changes. (a) Except as disclosed in set forth on Item 2.5 to the SEC Reports Company Disclosure -------- Letter, from March 31, 2000 (as defined in Section 4.05the "Balance Sheet Date") filed with the SEC prior to the date hereof or of this ------------------ Agreement in Section 4.04 the case of the Disclosure Letter, since July 31, 1997, clause (i) below and to the date of this Agreement and to the Closing Date in the case of all clauses except clause (i) below, the Company and each of its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and subsidiaries has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except as modified by the business strategy described in connection the GlobalCenter Proxy Statement without regard to the size of any particular transaction ("Ordinary Course") and there has not occurred: ---------------
(i) any change, event or condition (whether or not covered by insurance) that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect to the Company;
(ii) any contingent liability incurred as guarantor or surety with respect to the negotiation and execution and delivery obligations of this Agreement, and others out of the Ordinary Course;
(iii) there has not been any purchase, license, sale or other disposition, or any agreement or other arrangement for the purchase, license, sale or other disposition, of any of the properties, assets or goodwill of Company out of the Ordinary Course;
(aiv) any obligation or liability incurred thereby to any of its officers, directors, stockholders or affiliates, or any loans or advances made thereby to any of its officers, directors, stockholders or affiliates, except Ordinary Course compensation and expense allowances payable to officers and employees;
(v) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its subsidiaries or any revaluation by the Company or any of its subsidiaries of any of their material assets other than as a result of changes in GAAP;
(vi) any declaration, setting aside or payment of any a dividend or other distribution in with respect to the shares of the Shares Company or any repurchaseof its subsidiaries, redemption or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries subsidiaries of any outstanding of their shares of capital stock stock;
(vii) any amendment or change to the Certificate of Incorporation or Bylaws (or other securities in, or other ownership interests in, organizational documents) of the Company or any of its Subsidiaries; subsidiaries, except as necessary to effect the Stock Splits;
(bviii) any entry into mortgage or pledge of any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company Company's or any of its Subsidiaries tosubsidiaries' properties or assets or the incurrence of any security interest, their respective directorsencumbrance or lien of any kind (collectively, officers or employeesa "Lien"), except increases to employees who are not officers ---- Permitted Liens. "Permitted Lien" means (A) mechanics', carriers', workmen's, -------------- warehousemen's, repairmen's or directors occurring other like liens arising in the ordinary course of business in accordance Ordinary Course, (B) liens arising under original purchase price conditional sale contracts and equipment leases with its customary past practices; (c) any increase third parties entered into in the rate Ordinary Course, (C) liens for Taxes and other governmental obligations; and (D) other imperfections of title, restrictions or terms (including any acceleration encumbrances, if any, which liens, imperfections of title, restrictions or other encumbrances do not materially impair the continued use in the business of the right to receive payment) of any Plan (as hereinafter defined) respective owner thereof, or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any operation of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof specific assets to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice.they relate;
Appears in 2 contracts
Sources: Merger Agreement (Global Crossing LTD), Merger Agreement (Exodus Communications Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.053.1(m) filed with the SEC prior to Seller Disclosure Schedule and as otherwise contemplated hereby, from the Balance Sheet Date through the date hereof or in Section 4.04 of the Disclosure Letterthis Agreement, since July 31, 1997, (i) the Company and its Subsidiaries have there has not suffered occurred any Material Adverse Effect or any changeEffect. Except as set forth in Section 3.1(m) of the Seller Disclosure Schedule and as otherwise contemplated hereby, conditionfrom the Balance Sheet Date through the date of this Agreement, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company Companies and its their Subsidiaries have conducted their respective businesses only the Business in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreementall material respects, and none of the Companies or their Subsidiaries has:
(iiii) there has not been amended or changed its Organizational Documents;
(aii) any declarationdeclared, setting set aside or payment of paid any dividend or other distribution on or in respect of the Shares 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 inEquity Interests, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employeesor, except increases for daily cash transfers to employees who are not officers or directors occurring Seller made in the ordinary course of business or in accordance connection with its customary past practices; (c) Inter-Company Agreements, made any increase in the rate payment or terms (including any acceleration transfer of the right to receive payment) consideration of any Plan kind to any Affiliate or relative of any such Affiliate, other than salary and ordinary expense reimbursement to employees;
(as hereinafter definediii) granted, issued, delivered, pledged encumbered or sold any Equity Interests or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with disposition of any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach Equity Interests of any of the clauses of Section 6.01 hereof; Companies or their Subsidiaries;
(eiv) issued any change by the Company in accounting methodsnote, principles bond, or practices except as required by changes in United States generally accepted accounting principles; (f) other debt security or incurred or guaranteed any labor dispute, Indebtedness other than routine individual grievancescapitalized leases;
(v) amended or modified any material Contract (including, but not limited to, the Inter-Company Agreements) with any officer, director or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries Affiliate of any of the Companies or their respective assetsSubsidiaries, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; business;
(vi) terminated or canceled or waived any material right under any Company Contract other than any Inter-Company Agreement;
(hvii) acquired (by merger, consolidation or acquisition of stock or assets) any entry into any agreementcorporation, commitment partnership or transaction by the Company which is other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit;
(viii) sold, transferred or otherwise disposed of a material to the Company and amount of its Subsidiaries taken as a whole properties or assets, other than in the ordinary course of business consistent business;
(ix) changed its accounting methods or principles theretofore adopted, except as required by GAAP and reflected in the Financial Statements;
(x) made any change to their Tax accounting methods or principles (including any change in depreciation or amortization policies or rates), except as required by Law;
(xi) adopted any material change in the policies of the Companies or their Subsidiaries with past practiceregard to the extension of discounts or credit to customers or collection of receivables from customers;
(xii) entered into any Contract to take any of the actions specified in this Section 3.1(m).
Appears in 2 contracts
Sources: Purchase Agreement (Cendant Corp), Purchase Agreement (Affinion Loyalty Group, Inc.)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 3.13 of the Company Disclosure LetterSchedule, since July 31, 1997, (i) the Balance Sheet Date the business of the Company and its Subsidiaries Subsidiary has been conducted only in the Ordinary Course of Business, and there have not suffered been (a) any Material Adverse Effect events or any change, condition, event changes that have resulted in or development that could would reasonably be expected to have result in, individually or in the aggregate, a Company Material Adverse Effect, Effect (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and as defined below); (iii) there has not been (ab) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the equity interests of the Shares Company; 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company or its Subsidiary in accounting methodsprinciples, principles practices, policies or practices except as required by changes methods (including with respect to reserves), (d) any amendment to the Organizational Documents of the Company or its Subsidiary; (e) any transaction with, or for the benefit of, any Shareholder, Member of the Immediate Family of any Shareholder (if applicable) or any Affiliate of any of the foregoing Persons (other than payments of wages and salaries made to officers, directors and employees in United States generally accepted accounting principlesthe Ordinary Course of Business); (f) any labor disputematerial loss, other than routine individual grievancesdestruction or damage (in each case, whether or not insured) affecting the Company or any activity or proceeding by a labor union or representative thereof to organize any employees material asset of the Company or any its Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation increase in the compensation payable or paid, whether conditionally or otherwise, to any employee, consultant or agent other than in the Ordinary Course of Business, any director or officer or any Shareholder or any Affiliate of any Shareholder; (h) any agreement by the Company or its Subsidiary to do any of the things referred to elsewhere in this Section 3.13, (i) neither the Company nor its Subsidiary has become liable in respect of any guarantee or has incurred, assumed or otherwise become liable in respect of any Debt, except for borrowings in the Ordinary Course of Business under credit facilities in existence as of the Balance Sheet Date; or (j) neither the Company nor its Subsidiary has permitted any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable assets to become subject to a Lien other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicePermitted Lien.
Appears in 2 contracts
Sources: Contribution and Share Purchase Agreement (Panther Expedited Services, Inc.), Contribution and Share Purchase Agreement (Panther Expedited Services, Inc.)
Absence of Certain Changes. Except as disclosed set forth in the Company’s SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof Documents or in Section 4.04 3.9 of the Company Disclosure LetterSchedule, since July March 31, 19972003, (i) the business of the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have has been conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been any:
(a) any event, occurrence or development of a state of circumstances or facts which would, individually or in the aggregate, have a Material Adverse Effect on the Company;
(b) declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company, 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 inof, or other ownership interests in, the Company, except for repurchases of Company Stock pursuant to the terms of any Company Options;
(c) split, combination, re-classification of any Company Common Stock or any amendment of any term of any outstanding security of the Company;
(d) incurrence, assumption or guarantee by the Company or the Company Subsidiaries of any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase indebtedness for borrowed money other than in the rate ordinary course and in amounts and on terms consistent with past practices;
(e) creation or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable other incurrence by the Company or any of its the Company Subsidiaries of any Lien on any asset other than in the ordinary course consistent with past practices;
(f) making of any capital contribution to or investment in, or any loan or advance to, their respective directorsany Person other than capital contributions to or investments in Company Subsidiaries, officers or employees, except increases to employees who are not officers loans or directors occurring advances made in the ordinary course of the Company’s business in accordance consistent with its customary past practices; ;
(cg) change in any method of accounting, method of tax accounting or accounting practice by the Company or any of the Company Subsidiaries, except for any such change that is consistent with GAAP or required by reason of a concurrent change in GAAP or rules promulgated by the SEC;
(h) (i) grant of any severance or termination pay to any current or former director, officer or employee of the Company or any of the Company Subsidiaries, (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of the Company or any of the Company Subsidiaries, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements (other than in the rate or terms ordinary course of business), (including any acceleration of the right to receive paymentiv) of any Plan (as hereinafter defined) or any other bonusincrease in compensation, severance, insurance, pension bonus or other employee benefit plan, payment benefits payable or arrangement otherwise made to, for available to current or with any such former directors, officers or employees; (d) any action by employees of the Company which, if taken after the date hereof, would constitute a breach of or any of the clauses Company Subsidiaries (other than in the ordinary course of Section 6.01 hereof; business), or (ev) any change by the Company in accounting methodsestablishment, principles adoption, or practices amendment (except as required by changes in United States generally accepted accounting principles; applicable Law), of any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other Benefit Plan or arrangement covering any current or former director, officer or employee of the Company or any of the Company Subsidiaries;
(fi) any labor dispute, other than routine individual grievances, or or, to the Knowledge of the Company, any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement of the Company Subsidiaries or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; ;
(gj) any revaluation by the Company tax election or any settlement of its Subsidiaries tax liability, in either case that has had a Material Adverse Effect on the Company;
(k) asset acquisition or expenditure in excess of $100,000 individually or $250,000 in the aggregate;
(l) payment, prepayment or discharge of any liability in excess of their respective assets, including write-downs of inventory or of accounts receivable $100,000 individually other than in the ordinary course of business consistent with past practice; or any failure to pay any liability in excess of $100,000 individually when due (h) other than any entry into any agreement, commitment or transaction liability being contested in good faith by the Company and for which is material adequate reserves have been established to the extent required by GAAP);
(m) creation, termination or amendment of, or waiver of any material right under, any Contract of the Company and its Subsidiaries taken as or any of the Company Subsidiaries, except for the creation, termination or amendment of or waiver under any such Contract in the ordinary course of business or which would not, either individually or in the aggregate, have a whole Material Adverse Effect on the Company;
(n) damage, destruction or loss (whether or not covered by insurance) having, or reasonably expected to have, a Material Adverse Effect on the Company;
(o) sale or other disposition of any material Asset of the Company other than in the ordinary course of business consistent with past practicebusiness; or
(p) agreement or commitment to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Pacer Technology), Merger Agreement (Pacer Technology)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) Since the date of the Most Recent Balance Sheet, other than in connection with the transactions contemplated by this Agreement, the Company and its Subsidiaries Subsidiary have conducted their business only in, and have not suffered engaged in any Material Adverse Effect or material transaction other than in accordance with, the ordinary course of such business consistent with past practice.
(ii) Since the date of the Most Recent Balance Sheet, there has not occurred: (A) any event, change, effect, development, state of facts, condition, event circumstance or development that could occurrence that, individually or in the aggregate with other such events, changes, effects, developments, states of fact, conditions, circumstances or occurrences, has had, or would reasonably be expected to have have, a Company Material Adverse Effect; (B) any material damage, (ii) destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company and or its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practiceSubsidiary, except in connection with the negotiation and execution and delivery of this Agreement, and whether or not covered by insurance; (iii) there has not been (aC) any declaration, accrual, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company or its Subsidiary, or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries Subsidiary of any outstanding shares of capital stock or other securities in, or other ownership interests in, of the Company or any of its SubsidiariesSubsidiary; (bD) any entry into material change in any employment agreement method of accounting or severance compensation agreement with, accounting practice or internal controls (including internal controls over financial reporting) by the Company or its Subsidiary; (E) any (x) increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by to the officers or employees of the Company or its Subsidiary or (y) payment to any Company director or officer of its Subsidiaries toany material bonus, their respective directorsmaking to any Company director or officer of any material profit-sharing or similar payment, officers or employeesgrant to any Company director or officer of any rights to receive severance, termination, retention or tax gross-up compensation or benefits to (in any case except for increases to employees who are not officers or directors occurring in the ordinary course of business in accordance and consistent with its customary past practicespractice); (cF) any increase in the rate establishment, adoption, entry into, termination or terms (including any acceleration of the right to receive payment) amendment of any Plan (as hereinafter defined) or any other collective bargaining, bonus, severanceprofit-sharing, insurancethrift, pension compensation, employment, termination, severance or other employee benefit plan, payment agreement, trust, fund, policy or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach benefit of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methodsdirector, principles officer or practices employee, except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceapplicable Laws.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Gilead Sciences Inc), Merger Agreement (Pharmasset Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to Since the date hereof or in Section 4.04 of the Disclosure LetterMost Recent Balance Sheet and subject to changes resulting from the transactions contemplated in this Agreement, since July 31, 1997, there has not been:
(i) any material change in the Company and assets, liabilities, business, or prospects of the Sellers or the Seller Subsidiary or in its Subsidiaries have not suffered any Material Adverse Effect or any changetheir relationships with suppliers, conditioncustomers, event or development that could reasonably be expected to have a Material Adverse Effect, other Persons with which it or they do business;
(ii) any change in the Company and its Subsidiaries have conducted their respective businesses only sales or income of the Sellers or the Seller Subsidiary, other than in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and business;
(iii) there has any acquisition or disposition by the Sellers or the Seller Subsidiary of any material asset or property, unless agreed to by Astris and Buyer;
(iv) any damage, destruction or loss, whether or not been covered by insurance;
(av) any declaration, setting aside or payment of any dividend or any other distribution distributions in respect of the Shares 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 inequity interest of the Sellers or the Seller Subsidiary;
(vi) any issuance of any shares of the capital stock or other equity interest of the Sellers or the Seller Subsidiary or any direct or indirect redemption, purchase, or other ownership interests inacquisition by the Sellers or the Seller Subsidiary of any such capital stock or other equity interest, save and except for the Company or any issuance of its Subsidiaries; the Note;
(bvii) any entry into loss of the services of any employment agreement officer or severance compensation agreement withkey employee or consultant, or any increase or enhancement in the rate compensation, pension, or terms (including any acceleration of the right to receive payment), of compensation other benefits payable or to become payable by the Company Sellers or the Seller Subsidiary to any of their respective officers or key employees or consultants, or any bonus payments or arrangements made to or with any of its Subsidiaries tothem;
(viii) any forgiveness or cancellation of any debt or claim by the Sellers or the Seller Subsidiary or any waiver of any right of material value;
(ix) any entry by the Sellers or the Seller Subsidiary into any transaction with any Affiliates;
(x) any incurrence by the Sellers or the Seller Subsidiary of any obligations or liabilities, their respective directorswhether absolute, officers accrued, contingent or employeesotherwise (including without limitation liabilities as guarantor or otherwise with respect to obligations of others), except increases to employees who are not officers or directors occurring other than obligations and liabilities incurred in the ordinary course of business in accordance with its customary past practices; Persons other than Affiliates of the Sellers or the Seller Subsidiary;
(cxi) any increase in the rate incurrence or terms (including any acceleration of the right to receive payment) imposition of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of Lien on any of the clauses Assets of Section 6.01 hereofthe Sellers or the Seller Subsidiary; or
(exii) any change discharge or satisfaction by the Company in accounting methods, principles Sellers or practices except as required the Seller Subsidiary of any Lien or payment by changes in United States generally accepted accounting principles; the Sellers or the Seller Subsidiary of any obligation or liability (ffixed or contingent) any labor dispute, other than routine individual grievances(A) current liabilities included in the Most Recent Balance Sheet, or any activity or proceeding by a labor union or representative thereof (B) current, immaterial liabilities to organize any employees Persons other than Affiliates of the Company Sellers or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by their Subsidiaries incurred since the Company or any date of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than the Most Recent Balance Sheet in the ordinary course of business consistent business, and (C) current liabilities incurred in connection with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to transactions contemplated hereby and listed in Section 5.7 of the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceSeller Disclosure Schedule.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Astris Energi Inc), Asset Purchase Agreement (ACME Global Inc.)
Absence of Certain Changes. Except Since the Balance Sheet Date, other than as disclosed disclosed, or provided for, in the Company SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterDocuments, since July 31, 1997, (i) the Company and its the Subsidiaries have conducted their businesses in the ordinary course and there has not suffered been:
(a) any Material Adverse Effect Change or any changeevent, conditionoccurrence, event development or development that could state of circumstances or facts which would reasonably be expected to have result in a Material Adverse EffectChange, other than those relating to the economy generally and regulatory changes;
(ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (ai) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company, or (ii) any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries Subsidiary of any outstanding shares of capital stock or other securities inof, or other ownership interests in, the Company or any of its Subsidiaries; Subsidiary;
(bc) any entry into amendment of any employment agreement or severance compensation agreement with, or material term of any increase in the rate or terms (including any acceleration outstanding equity security of the right Company;
(d) any (i) grant of any material severance or termination pay to receive payment)(or amendment to any existing arrangement with) any director, officer or employee of compensation payable or to become payable by the Company or any of its Subsidiaries toSubsidiaries, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (cii) any material increase in the rate benefits payable under any existing severance or terms termination pay policies or employment agreements, (including iii) entering into any acceleration of the right to receive payment) of any Plan employment, deferred compensation or other similar agreement (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or amendment to any such existing agreement) with any such directorsdirector, officers officer or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees employee of the Company or any Subsidiaryof the Subsidiaries, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; (iv) establishment, adoption or amendment (hexcept as required by applicable law) of any entry into collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any agreementdirector, commitment officer or transaction by employee of the Company which is material to the Company and or any of its Subsidiaries taken as a whole Subsidiaries, other than in the ordinary course of business consistent with past practice, or (v) increase in compensation, bonus or other benefits payable to any director, officer or employee of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice;
(e) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any Subsidiary which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect after giving effect to insurance; or
(f) any loss of a customer, client or business partner that, individually or in aggregate, would be material to the business or financial condition of the Company and its Subsidiaries, taken as a whole; or
(g) any change in any method of accounting or accounting practice by the Company or any Subsidiary, except for any such change after the date hereof required by reason of a concurrent change in or application of generally accepted accounting principles.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Morgan Stanley Dean Witter & Co), Securities Purchase Agreement (Frontstep Inc)
Absence of Certain Changes. Except as disclosed set forth in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July December 31, 19971996, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses business only in the ordinary course of such business consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreementpractices, and (iii) there has not been (ai) any events or states of fact which individually or in the aggregate would have a Material Adverse Effect; (ii) any declaration, setting aside or payment of any dividend or other distribution in with respect of the Shares or to its capital stock; (iii) any repurchase, redemption or any other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities inof, or other ownership interests in, the Company or any of its Subsidiaries; (biv) any material change in accounting principles, practices or methods; (v) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including including, without limitation, any acceleration of the right to receive payment), ) of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except for increases occurring in the ordinary course of business in accordance with their customary practices which do not exceed $500,000, in the aggregate, annually and employment agreements entered into in the ordinary course of business which do not provide for annual compensation which exceeds $100,000, in the aggregate; (vi) any increase in the rate or terms (including, without limitation, any acceleration of the right to employees who are not receive payment) of any bonus, insurance, pension or other employee benefit plan or arrangement covering any such directors, officers or directors employees, except increases occurring in the ordinary course of business in accordance with its customary past practicespractices which do not exceed $1,000,000 in the aggregate; (cvii) any increase in the rate entry into any Contract or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action transaction by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, Subsidiary or modification of any existing Contract which employees were is material to the Company and its Subsidiaries taken as a whole whether or not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employeesin the ordinary course of business; (gviii) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practicepractices; or (hix) any entry into any agreement, commitment or transaction action by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice.the
Appears in 2 contracts
Sources: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since December 31, 19971999 (the -------------------------- "Acquiror Balance Sheet Date"), (i) the Company and Acquiror has conducted its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practicepractice and there has not occurred: (i) any change, except in connection with event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect on the negotiation and execution and delivery Acquiror; (ii) an acquisition, sale or transfer of this Agreement, and any material asset of the Acquiror; (iii) there has not been any material change in accounting methods or practices (aincluding any change in depreciation or amortization policies or rates) by the Acquiror or any revaluation by the Acquiror of any of its assets; (iv) any declaration, setting aside aside, or payment of any a dividend or other distribution in with respect to the securities of the Shares Acquiror, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or Acquiror of any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiariessecurities; (bv) any entry material contract entered into any employment agreement or severance compensation agreement withby the Acquiror, or any material amendment or termination of, or default by the Acquiror under, any material contract to which the Acquiror is a party or by which it is bound; (vi) any amendment or change to the certificate of incorporation or bylaws of the Acquiror; (vii) any increase in the rate or terms (including any acceleration modification of the right to receive payment), of compensation or benefits payable or to become payable by the Company or Acquiror to any of its Subsidiaries to, their respective directors, officers directors or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (cviii) any increase in the rate negotiation or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action agreement by the Company which, if taken after the date hereof, would constitute a breach of Acquiror to do any of the things described in the preceding clauses of Section 6.01 hereof; (ei) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; through (fvii) any labor dispute, (other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of negotiations with the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to Parent and the Company and its Subsidiaries taken as a whole other than in their representatives regarding the ordinary course of business consistent with past practicetransactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Purchase Agreement (Naviant Inc), Purchase Agreement (Naviant Inc)
Absence of Certain Changes. Except as disclosed Since December 31, 1999, there has not -------------------------- been with respect to either of the Companies:
(a) any change in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof financial condition, properties, assets, liabilities, business or operations thereof which change by itself or in Section 4.04 of the Disclosure Letterconjunction with all other such changes, since July 31, 1997, (i) the Company and its Subsidiaries have whether or not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only arising in the ordinary course consistent of business, has had or will have a material adverse effect thereon;
(b) any contingent liability incurred thereby as guarantor or otherwise with past practicerespect to the obligations of others;
(c) any mortgage, except encumbrance or Lien placed on any of the properties thereof;
(d) any material obligation or liability incurred thereby other than obligations and liabilities incurred in connection with the negotiation ordinary course of business in individual amounts less than $25,000;
(e) any purchase or sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets thereof other than in the ordinary course of business in individual amounts less than $25,000;
(f) any damage, destruction or loss, whether or not covered by insurance, materially and execution and delivery of this Agreementadversely affecting the properties, and assets or business thereof;
(iii) there has not been (ag) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock thereof, any split, combination or recapitalization of the Shares capital stock thereof or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by of the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership equity interests in, the Company or any of its Subsidiaries; thereof;
(bh) any entry into labor dispute or claim of unfair labor practices, any employment agreement or severance compensation agreement with, or any increase change in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or to any of its Subsidiaries toofficers, their respective directorsmanagers, officers employees or employeesagents, except increases or any bonus payment or arrangement made to or with any of such officers, managers, employees who are or agents;
(i) any change with respect to the management, supervisory or other key personnel thereof;
(j) any payment or discharge of a material lien or liability thereof which lien was not officers either shown on the Balance Sheets or directors occurring incurred in the ordinary course of business in accordance with its customary past practices; thereafter;
(ck) any increase obligation or liability incurred thereby to any of its officers, employees, directors or shareholders or any loans or advances made thereby to any of its officers, employees, directors or shareholders except normal compensation and expense allowances payable to officers and employees;
(l) any amendment or change in the rate Articles of Incorporation, bylaws or terms (including any acceleration other governing documents of the right to receive payment) of any Plan Companies; or
(as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (em) any change by in the Company in accounting methods, principles policies or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees procedures of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceCompanies.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letterset forth on Schedule 2.5, since July 31March 29, 19971998 (the "Target Balance Sheet Date"), (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company Target and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practicepractice and there has not occurred: (i) any change, except event or condition (whether or not covered by insurance) that, individually or in connection the aggregate, has resulted in a Material Adverse Effect on Target; (ii) any acquisition, sale or transfer of any material asset by Target or any of its Subsidiaries other than (A) for consideration of less than $250,000 in any one transaction in the ordinary course of business and consistent with past practice or (B) sales of inventory in the negotiation and execution and delivery ordinary course of this Agreement, and business; (iii) there has not been any change in accounting methods or practices (aincluding any change in depreciation or amortization policies or rates) by Target or its Subsidiaries or any revaluation by Target of any of its or any of its Subsidiaries' assets; (iv) any declaration, setting aside aside, or payment of any a dividend or other distribution in with respect to the shares of the Shares Target, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by Target of any of its shares of capital stock; (v) any entrance by Target or its Subsidiaries into any material Contract not made in the Company ordinary course of business, or any material amendment or termination (not made in the ordinary course of business) of, or default under, any material Contract to which Target or any of its Subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Articles of any outstanding shares Incorporation or Bylaws of capital stock Target or other securities in, or other ownership interests in, the Company or organizational documents of any of its Subsidiaries; or (bvii) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration modification of the right to receive payment), of base compensation payable or to become payable by the Company Target or any of its Subsidiaries to, to any of their respective directors, directors or officers (or equivalent positions) or employees, except increases to employees who are for such increase or modification as would not officers or directors occurring result in an increase in excess of ten percent (10%) in the ordinary course base compensation annualized over the next twelve (12) months payable or to be payable to any employee who had an annual rate of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration base compensation of over $50,000 as of the right to receive payment) later of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereofof hire or March 29, would constitute a breach of 1998. Except as set forth in Schedule 2.5, Target and its Subsidiaries have not agreed since March 29, 1998 to do any of the things described in the preceding clauses (i) through (vii) and is not currently involved in any negotiations to do any of Section 6.01 hereof; the things described in the preceding clauses (ei) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; through (fvii) any labor dispute, (other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or negotiations with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company Acquiror and its Subsidiaries taken as a whole other than in representatives regarding the ordinary course of business consistent with past practicetransactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Tandy Corp /De/), Agreement and Plan of Reorganization (Amerilink Corp)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterSince January 1, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice1999, except in connection with as set forth on SCHEDULE 3.9 hereto or the negotiation and execution and delivery of this AgreementShareholders' Committee Disclosure Schedule, and (iii) there has have not been (a) any declarationmaterial changes in the assets, setting aside liabilities, sales, income or payment of any dividend or other distribution in respect business of the Shares 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 in, or other ownership interests in, the Company or any of its SubsidiariesCompany; (b) any entry into any employment agreement changes in its relationships with suppliers, customers or severance compensation agreement withlessors, or any increase other than changes which were both in the rate ordinary course of business and have not been, either in any case or terms in the aggregate, materially adverse; (including c) any acceleration acquisition or disposition by the Company of any asset or property other than in the ordinary course of business; (d) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting, either in any case or in the aggregate, the property or business of the right to receive payment)Company; (e) any direct or indirect redemption, purchase or other acquisition of compensation any of the Company Stock; (f) any change in pension or other benefits payable or to become payable by the Company or to any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring ; (g) any changes in the personnel other than changes which were both in the ordinary course of business and have not been, either in accordance with its customary past practicesany case or in the aggregate, materially adverse; (ch) any increase in the rate forgiveness or terms (including any acceleration of the right to receive payment) cancellation of any Plan (as hereinafter defined) debt or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation claim by the Company or any of its Subsidiaries waiver of any right of their respective assets, including write-downs of inventory or material value other than compromises of accounts receivable in the ordinary course of business; (i) any entry by the Company into any transaction other than in the ordinary course of business consistent with past practicebusiness; or (hj) any entry into any agreement, commitment or transaction incurrence by the Company which is material of any obligations, commitments or liabilities, whether absolute, accrued, contingent or otherwise (including, without limitation, liabilities as guarantor or otherwise with respect to obligations of others), other than obligations and liabilities incurred in the ordinary course of business; (k) any mortgage, pledge, lien, lease, security interest or other charge or encumbrance placed on any of the assets, tangible or intangible, of the Company; (l) any discharge or satisfaction by the Company and its Subsidiaries taken as a whole of any lien or encumbrance or payment by the Company of any obligation or liability (fixed or contingent) other than (A) current liabilities included in the Audited Balance Sheet and (B) current liabilities incurred since the date of the Audited Balance Sheet in the ordinary course of business. Except as set forth on SCHEDULES 3.9, 3.10, 3.22, 3.23 AND 3.24, the Company has no liabilities of any nature whatsoever other than the liabilities set forth on the balance sheet included in the Interim Financials, and except for other liabilities of the Seller incurred in the ordinary course of business since the date of the balance sheet included in the Interim Financials. The reserves established for such liabilities on such balance sheet were established based on reasonable assumptions made in good faith and consistent with the Company's past practicepractices.
Appears in 2 contracts
Sources: Stock Purchase Agreement (High Voltage Engineering Corp), Stock Purchase Agreement (High Voltage Engineering Corp)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since May 31, 19971999 (the "Target Balance Sheet Date"), (i) the Company and Target has conducted its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been occurred: (ai) any declarationchange, setting aside event or payment of any dividend condition (whether or other distribution in respect of the Shares or any repurchase, redemption or other acquisition not covered by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities insurance) that has resulted in, or other ownership interests might reasonably be expected to result in, the Company or any of its Subsidiariesa Material Adverse Effect to Target; (bii) any entry into any employment agreement acquisition, sale or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) transfer of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach material asset of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable Target other than in the ordinary course of business and consistent with past practice; or (hiii) any entry into change in accounting methods or practices (including any agreementchange in depreciation or amortization policies or rates) by Target or any revaluation by Target of its assets; (iv) any declaration, commitment setting aside, or transaction by the Company which is material payment of a dividend or other distribution with respect to the Company and shares of Target, or any direct or indirect redemption, purchase or other acquisition by Target of any of its Subsidiaries taken as a whole shares of capital stock; (v) any material contract entered into by Target, other than in the ordinary course of business consistent and as provided to Acquiror, or any material amendment or termination of, or default under, any material contract to which Target is a party or by which it is bound; (vi) any amendment or change to the Articles of Incorporation or Bylaws or, except as contemplated by Section 2.16 hereof, the Target Rights Agreement of Target; or (vii) any increase in or modification of the compensation or benefits payable or to become payable by Target to any of its directors or employees. Other than with past practicerespect to the stock option and incentive plans described in Target's proxy statement for the annual meeting of its shareholders held on January 18, 1999 or as disclosed on Section 2.15 of the Target Disclosure Schedule, Target has not agreed since the Target Balance Sheet Date to do any of the things described in the preceding clauses (i) through (vii) and is not currently involved in any negotiations to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with Acquiror and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Ophthalmic Imaging Systems Inc), Merger Agreement (Premier Laser Systems Inc)
Absence of Certain Changes. Except as disclosed set forth in the Company SEC Reports Documents or on Schedule 3.6 of the Company Disclosure Schedule, since December 31, 2006 (as defined in Section 4.05) filed with the SEC prior to “Company Balance Sheet Date”), through the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997this Agreement, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries have conducted their respective businesses only in the ordinary course of business consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, practice and (iiiii) there has not been occurred: (aA) any change, event or condition (whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Company Material Adverse Effect, (B) any acquisition, sale, or transfer of any material asset of the Company or its Subsidiaries, (C) any material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its assets, (D) any declaration, setting aside or payment of any a dividend or other distribution in with respect to the shares of the Shares Company, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of its shares of capital stock, respectively, (E) any Material Contract entered into by the Company or any of its Subsidiaries, other than as provided to Parent, or any material amendment or termination of, or default under, any Material Contract (or contract that, but for such termination, would be a Material Contract), (F) any amendment or change to the Company Articles or the Certificate of Incorporation of any of its Subsidiaries, (G) any increase in or modification of the compensation or benefits payable or to become payable by Company or any of its Subsidiaries to any of their respective assetsdirectors, including writeemployees or consultants other than, with respect to non-downs of inventory or of accounts receivable other than officer employees and consultants only, any increases in the ordinary course of business consistent with past practice; , or (hH) any entry into any agreement, commitment or transaction agreement by the Company which is material to the Company and or any of its Subsidiaries taken as a whole other than to do any of the things described in the ordinary course of business consistent with past practicepreceding clauses (A) through (G).
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Guideline, Inc.)
Absence of Certain Changes. Except as disclosed in Since the SEC Reports Company Balance Sheet Date and, other than with respect to clause (as defined in Section 4.05a) filed with the SEC below, prior to the date hereof or in Section 4.04 of the Disclosure Letterhereof, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course course, consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been been:
(a) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on the Company;
(b) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company (other than regular quarterly cash dividends payable by the Company in respect of the Shares shares of Company Common Stock consistent with past practice), or any repurchaserepurchase (other than repurchases of Company Common Stock which occurred subsequent to the Company Balance Sheet Date and prior to the date hereof), redemption or other acquisition by the Company or any of its Significant Subsidiaries of any outstanding shares of their capital stock or other securities inany Company Convertible Securities or Company Subsidiary Convertible Securities (except (x) as required by the terms of any Company Stock Option, or other ownership interests in, (y) in accordance with any dividend reinvestment plan as in effect on the date of this Agreement in the ordinary course of the operation of such plan consistent with past practice and/or (z) as otherwise permitted by Section 5.1);
(c) any amendment of any material term of any outstanding security of the Company or any of its Significant Subsidiaries; ;
(bd) any entry into any employment agreement transaction or severance compensation agreement withcommitment made, or any increase in the rate contract, agreement or terms settlement entered into, by (including any acceleration of the right to receive payment)or judgment, of compensation payable order or to become payable by decree affecting) the Company or any of its Subsidiaries to, their respective directors, officers relating to its assets or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) acquisition or disposition of any Plan (as hereinafter definedmaterial amount of assets) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation relinquishment by the Company or any of its Subsidiaries of any contract or other right, in either case, material to the Company and its Subsidiaries taken as a whole, other than transactions, commitments, contracts, agreements or settlements (including without limitation settlements of their respective assetslitigation and tax proceedings) in the ordinary course of business consistent with past practice and those contemplated by this Agreement;
(e) any change in any method of accounting or accounting practice (other than any change for tax purposes) by the Company or any of its Subsidiaries, including write-downs except for any such change which is not material or which is required by reason of inventory a concurrent change in GAAP;
(f) any (i) grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of accounts receivable the Company or any of its Subsidiaries, (ii) entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its Subsidiaries, (iii) increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements or (iv) increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its Subsidiaries, in each case, other than in the ordinary course of business consistent with past practicepractice or as permitted by this Agreement; or or
(hg) any entry into material Tax election made or changed, any agreement, commitment material audit settled or transaction by the Company which is any material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceamended Tax Returns filed.
Appears in 2 contracts
Sources: Merger Agreement (Honeywell Inc), Merger Agreement (Alliedsignal Inc)
Absence of Certain Changes. Except as disclosed set forth in Schedule 3.7, since the Balance Sheet Date, the business of the Company has been conducted only in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 Ordinary Course of the Disclosure LetterBusiness and there has not been any event, since July 31occurrence, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, conditiondevelopment, event condition or development that state of circumstances which has had or could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in Schedule 3.7, since the Balance Sheet Date, there has not occurred: (i) any damage, destruction or loss, whether or not adequately covered by insurance, involving any Asset in excess of $50,000; (ii) any adoption or modification of any Benefit Plan made to, for or with any employees of the Company; (iii) any change in compensation payable (including, without limitation, commission, bonus or other direct or other remuneration) or to become payable by the Company to its employees, directors, officers or agents or change in benefits under any Benefit Plan, in each case other than changes made in the Ordinary Course of Business; (iv) any sale or other disposition of any Assets of the Company, other than sales or dispositions made in the Ordinary Course of Business; (v) any creation or other incurrence of a Lien of any kind upon any Assets of the Company except Permitted Liens; (vi) any change in the method of allocation of expenses, liabilities or income between the Company and its Subsidiaries have conducted their respective businesses only any other subsidiaries, divisions or business units of the Company or the Parent or any other change in the ordinary course consistent with past practicemethod of accounting or accounting practices of the Company; (vii) any amendment, termination, waiver, cancellation or release of any rights or claims of material value, including rights or claims under any Material Contract, or any waiver or release of any right or claim relating to the Company's business against any affiliate (as defined in Rule 405 under the Securities Act, "affiliate") of any of the Parent or the Company; (viii) any discharge or payment of any material obligation or liability of the Company other than in the Ordinary Course of Business; (ix) any incurrence of Indebtedness by the Company; (x) any capital expenditures or commitments by the Company for any addition to property, plant or equipment exceeding $20,000 individually or $100,000 in the aggregate; (xi) any material cancellation or waiver of any debts to or any claims of the Company except in connection with the negotiation and execution and delivery Ordinary Course of this Agreement, and Business; (iii) there has not been (axii) any declaration, setting aside or payment of any dividend or other distribution in with respect of to the Shares Stock, 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 inof the Company, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right payments to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereofCompany's stockholders in their capacity as such; (exiii) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) amendment of any labor dispute, other than routine individual grievances, or material term of any activity or proceeding by a labor union or representative thereof to organize any employees outstanding security of the Company or any Subsidiaryrecapitalization or reclassification of the capital stock of the Company; (xiv)
(A) any employment agreement with or for the benefit of any of the Company's directors, which officers, employees were or agents; (B) any payment of any pension, retirement allowance or other employee benefit not then subject required to a collective bargaining agreement be paid by any existing Benefit Plan; or (C) any lockoutscommitment made by the Company to any of the Company's directors, strikesofficers, slowdowns, work stoppages employees or threats thereof by or agents with respect to such employeesany additional pension, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation, group insurance, severance pay, retirement or other Benefit Plan; (gxv) any revaluation amendment or termination (other than by the Company or any of its Subsidiaries completion thereof) of any of their respective assetsMaterial Contract; (xvi) any change or modification in any material respect to the Company's credit, collection or payment policies, procedures or practices, including write-downs acceleration of inventory collections or receivables (whether or not past due), acceleration of accounts receivable payment of payables or other than in the ordinary course of business consistent with past practice; liabilities or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice.failure to
Appears in 2 contracts
Sources: Asset Purchase Agreement (Transtechnology Corp), Asset Purchase Agreement (Transdigm Holding Co)
Absence of Certain Changes. Except for the Consolidation, and as otherwise previously disclosed in the SEC Reports (as defined Documents filed by the Company or previously disclosed by the Company in Section 4.05) filed with the SEC prior a press release or to the date hereof or Purchaser in Section 4.04 of the Disclosure Letterwriting, except as provided in Schedule 3.13, since July 31September 29, 19972002, there has not been:
(ia) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in Any transaction outside of the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and business involving any Company Party or its Subsidiaries;
(iiib) there has not been (a) any Any declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, stock or property) with respect to the Capital Stock of the Shares Company or any repurchaseof its Subsidiaries, redemption or any redemption, purchase or other acquisition by of securities of the Company or any of its Subsidiaries, or any payment to any stockholder of the Company or any of its Subsidiaries not in its capacity as a stockholder;
(c) Any damage, destruction or loss, whether or not covered by insurance, to any material assets or properties of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; ;
(bd) Any material adverse change in the assets, liabilities, condition (financial or otherwise), operations or prospects of any entry into any employment agreement or severance compensation agreement with, Company Party or any increase in of its Subsidiaries;
(e) Except for the rate or terms (including any acceleration transfer of the right Officer Notes from TreeCon to receive payment), of compensation payable or to become payable by the Company in connection with the Spin-Off, any loan or advance made by any Company Party or any of its Subsidiaries to, their respective directors, officers or employeesto any Person, except increases to employees who are not officers travel advances or directors occurring other reasonable business expense advances made in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; its employees;
(f) Any Indebtedness for borrowed money incurred by any labor dispute, other than routine individual grievances, Company Party or any activity of its Subsidiaries or proceeding any commitment to incur Indebtedness for borrowed money entered into by a labor union any Company Party or representative thereof any of its Subsidiaries (except as contemplated by this Agreement);
(g) Any capital expenditures or commitments to organize any employees make capital expenditures materially in excess of the amounts reflected in the financial projections attached to the Officers’ Certificate being delivered to the Purchaser pursuant to Section 5.16;
(h) Any indemnity or other claims made by or against any Company Party or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or of its Subsidiaries with respect to such employees; or in connection with any acquisition or sale or other disposition, whether direct or indirect, of the Capital Stock or assets of any other Person;
(gi) Any amendment or other modification to the charter or bylaws of any revaluation Company Party or any of its Subsidiaries, except in connection with the issuance of shares of Series A Preferred Stock to the Purchaser and the Spin-Off;
(j) The formation of any Subsidiary of any Company Party or any of its Subsidiaries;
(k) Except for the forgiveness of the TreeCon Accounts Receivable, any waiver by the any Company Party or any of its Subsidiaries of a valuable right or of material Indebtedness owed to it;
(l) Any payment, satisfaction, discharge or cancellation of any debts or claims of any Company Party or any of their respective assets, including write-downs of inventory or of accounts receivable its Subsidiaries other than in the ordinary course of business consistent with past practice; practices;
(m) Any amendment, modification or termination of any Material Contract;
(hn) Any increase in the Contingent Obligations of any entry into Company Party or any agreementof its Subsidiaries, commitment by way of guarantees or transaction otherwise;
(o) Any mortgage, pledge or subjecting to Lien of any of the assets or properties of any Company Party or any of its Subsidiaries, or any assumption of, or taking any assets or properties subject to, any liability;
(p) Any resignation or termination of employment of any director, officer or key employee of any Company Party or any of its Subsidiaries;
(q) Any Investment by any Company Party or any of its Subsidiaries in the Capital Stock of any Person;
(r) Any payment of management or other fees by the Company which is material or any of its Subsidiaries to TreeCon or any other Affiliate of the Company;
(s) Any offer, issuance or sale of any shares of Capital Stock or Option Rights of any Company Party or any of its Subsidiaries, other than to the Purchaser or to employees under the 2002 Stock Option Plan;
(t) Any alteration or change in the Company’s credit guidelines and policies, charge-off policies or accounting methods, quality control procedures or policies or manner of preparing its financial statements or maintaining its books of account;
(u) any increase in, or commitment to increase, the salaries, wages, bonuses or other compensation payable or to become payable to any officer or other employee of the Company and or any of its Subsidiaries taken as a whole Subsidiaries, other than increases in salaries and wages in the ordinary course of business consistent with past practicepractices and not in excess of fifteen percent (15.0%) for any one officer or other employee;
(v) The adoption by any Company Party or any of its Subsidiaries of any new Benefit Plan or material amendment to any Benefit Plan, other than the 2002 Stock Option Plan, involving any officer, director, employee or former employee of any Company Party or any of its Subsidiaries (or any of their dependents or beneficiaries);
(w) Any settlement of any litigation, entry of a consent decree or entry of any judgment against any Company Party or any of its Subsidiaries with a value of $25,000 or more;
(x) Any revaluation or write-off of any asset of any Company Party or any of its Subsidiaries, including increases in reserves, except in the ordinary course of business consistent with past practice (other than the write-off of the TreeCon Accounts Receivable); or
(y) The occurrence of any other event or the development of any other condition which could have a Material Adverse Effect.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp), Securities Purchase Agreement (Overhill Farms Inc)
Absence of Certain Changes. Except Prior to the Closing, except as disclosed expressly permitted or contemplated hereby, ACCI will not, without WSBI's or DeBaux's prior express written consent, cause WSBI to:
(a) Incur any additional indebtedness for money borrowed, or guarantee any indebtedness or obligation of any other party other than in the SEC Reports normal course of business;
(as defined b) Set aside or pay any dividend or distribution of assets to, or repurchase any of its stock from, any of its shareholders,
(c) Issue any capital stock or securities convertible into capital stock or grant or issue any options, warrants or rights to subscribe for its capital stock or securities convertible into its capital stock other than the issuance of up to 12,000,000 shares of common stock in Section 4.05) filed with the SEC raising of the additional capital prior to the date hereof or Closing of Five Hundred Thousand Dollars ($500,000.00) as provided in Section 4.04 of the Disclosure Letter5.4 hereof;
(d) Enter into, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect amend or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into terminate any employment agreement or severance compensation any agreement withor arrangement which, or any if in effect on the date hereof, would be required to be disclosed;
(e) Extraordinarily increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or ACCI to any of its Subsidiaries toofficers, their respective directorsemployees or agents above the amount payable, officers or employeesadopt or amend any employee benefit plan or arrangement;
(f) Acquire or dispose of any material properties or assets used in its business;
(g) Waive any statute of limitations so as to extend any tax or other liability of ACCI;
(h) Permit any material change in the nature of the business of WSBI or the manner in which the ACCI books and records are maintained;
(i) Create or suffer to be imposed any lien, mortgage, security interest or other charge on or against its properties or assets, except increases to employees who are not officers or directors occurring for purchase money security interests incurred in the ordinary course of business business;
(j) Enter into, amend or terminate any lease of real or personal property;
(k) Amend its Articles of Incorporation or Bylaws; or
(l) Engage in accordance with its customary past practices; (c) any increase in the rate activities or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in transactions outside the ordinary course of its business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by as conducted at the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicedate hereof.
Appears in 2 contracts
Sources: Definitive Agreement (Vance Christopher Michael), Definitive Agreement (American Career Centers Inc)
Absence of Certain Changes. Except for as disclosed listed in Schedule 4.6 (b), -------------------------- ---------------- since the date of the documents attached as Exhibit A hereto there has --------- not been:
(a) any materially adverse change in the SEC Reports condition (as defined in Section 4.05financial or otherwise) filed with the SEC prior to the date hereof or in Section 4.04 the properties, assets or liabilities, business or prospects of the Disclosure LetterCompany, since July 31, 1997, (i) the Company except normal and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only usual changes in the ordinary course consistent with past practiceof business, except none of which has been materially adverse and all of which in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has aggregate have not been materially adverse;
(ab) any declaration, setting aside aside, or payment of any dividend or other distribution on or in respect of the Shares or any repurchase, redemption or other acquisition by capital stock of the Company or any of its Subsidiaries direct or indirect redemption, purchase or other acquisition of any outstanding of such stock or any issuance of any shares of capital such stock or other securities in, any granting or other ownership interests in, the Company entering into of any option or commitment relating to any of its Subsidiaries; such stock;
(bc) any entry into any employment agreement or severance compensation agreement with, or any increase in the compensation or rate or terms (including any acceleration of the right to receive payment), of compensation or commissions payable or to become payable by the Company or to any of its Subsidiaries to, their respective directors, officers officers, employees or employeesconsultants, except increases or any hiring of any employee at a salary in excess of $1,000 per month, or any payment or accrual of any bonus, profit-sharing or other extraordinary compensation to employees who are any director, officer, employee or consultant, or any change in any then existing bonus, profit- sharing, pension, retirement or other similar plan, agreement or arrangement or any adoption of or entering into of any new bonus, profit-sharing, pension, stock option, retirement, group life or health insurance or other similar plan, agreement or arrangement;
(d) any change in the accounting methods or practices followed by the Company or any change in depreciation or amortization policies or rates heretofore adopted;
(e) any debt, obligation or liability (whether absolute or contingent) incurred by the Company (whether or not officers or directors occurring outstanding at present) except
(i) current liabilities incurred in the ordinary course of business in accordance with its customary past practices; (c) any increase and obligations under agreements entered into in the rate ordinary course of business and (ii) obligations or terms (including any acceleration liabilities entered into or incurred in connection with the execution of the right to receive payment) of any Plan (as hereinafter defined) or any other bonusthis Agreement, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company which are set forth in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; Schedule 4.6 hereto if ------------ individually over $10,000.00;
(f) any labor disputesale, lease, abandonment or other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation disposition by the Company or any of its Subsidiaries of any of their respective assetsinterest in real property or, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; business, of any machinery, equipment or (h) other operating properties, or any entry into any agreementsale, commitment encumbrance, lien, assignment, transfer, license, or transaction other disposition by the Company which is material to of any patent, trademark, trade name, brand name, copyright (or pending application for any patent, trademark or copyright), invention, process, know-how, formula, pattern, design, trade secret or interest thereunder or other intangible asset; or
(g) any labor trouble, strike, or any other occurrence, event or condition of any similar or dissimilar character affecting the employees of the Company which materially and its Subsidiaries taken as a whole other than in adversely affects or may materially and adversely affect the ordinary course condition (financial or otherwise) or the assets, liabilities, business or properties of business consistent with past practicethe Company.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Tuboscope Vetco International Corp)
Absence of Certain Changes. Except Since the Balance Sheet Date, except as disclosed in the Company 10-K or any SEC Reports (as defined in Section 4.05) Document filed with subsequent to the SEC filing of the Company 10-K but prior to the date hereof or of this Agreement (collectively, the "CURRENT SEC DOCUMENTS"), as set forth in Section 4.04 4.10 of the Company Disclosure LetterSchedule or as may be affected by actions permitted to be taken pursuant to Section 6.01 or actions specifically contemplated to be taken by this Agreement, since July 31, 1997, (i) the business of the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have has been conducted their respective businesses only in the ordinary course consistent with past practicepractices and since the Balance Sheet Date, except as disclosed in connection with the negotiation and execution and delivery Current SEC Documents or as set forth in Section 4.10 of this Agreementthe Company Disclosure Schedule, and (iii) there has not been been:
(a) any event, occurrence or circumstance that has had or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company, 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 inof, or other ownership interests in, the Company or any of its Subsidiaries; ;
(bc) any entry into amendment of any employment agreement or severance compensation agreement with, material term of any outstanding security of the Company or any increase in the rate of its Subsidiaries;
(d) any incurrence, assumption or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable guarantee by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring of any indebtedness for borrowed money other than in the ordinary course of business and in accordance amounts and on terms consistent with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; ;
(e) any making of any loan, advance or capital contributions to or investment in any Person other than loans, advances or capital contributions to or investments in its wholly-owned Subsidiaries or otherwise in the ordinary course of business consistent with past practices;
(f) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any of its Subsidiaries that would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect;
(g) any change in any method of accounting or accounting principles or practice by the Company or any of its Subsidiaries, except for any such change required by reason of a concurrent change in accounting methodsGAAP;
(h) any (i) grant of any severance or termination pay to (or amendment to any existing arrangement with) any director, principles officer or practices employee of the Company or any of its Subsidiaries (other than pursuant to the terms of existing plans, policies, agreements or arrangements, including the Company's severance policy guidelines previously made available to Parent, or in the ordinary course of business with respect to any non-officer employee whose annual base salary does not exceed $150,000), (ii) material increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iii) entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or (other than any such agreement or amendment entered into in the ordinary course of business, which will not result in liability to the Company upon termination of employment in an amount in excess of $150,000 per employee) employee of the Company or any of its Subsidiaries, (iv) establishment, adoption or amendment (except as required by changes applicable law or contemplated by this Agreement) of any collective bargaining (but only through the date of this Agreement), bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other material benefit plan or arrangement covering any director, officer or employee of the Company or any of its Subsidiaries or (v) material increase in United States generally accepted accounting principles; compensation, bonus or other benefits payable to any director or officer of the Company or any of its Subsidiaries;
(fi) through the date immediately preceding the date of this Agreement, any organized labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiaryof its Subsidiaries, which employees were not then subject to a collective bargaining agreement at the Balance Sheet Date, or any lockouts, strikes, slowdowns, work stoppages or or, to the knowledge of the Company, threats thereof by or with respect to such employees; or
(gj) as of the date of this Agreement, any revaluation by the Company Tax election made or changed, any annual Tax accounting period changed, any method of Tax accounting adopted or changed, any amended Tax Returns or claims for Tax refunds filed, any closing agreement entered into with a Taxing Authority, or any of its Subsidiaries of any of their respective assetsTax claim, including write-downs of inventory audit or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the assessment settled which would be reasonably likely to have a Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceMaterial Adverse Effect.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in Since the SEC Reports (as defined in Section 4.05) filed with the SEC CMJ Balance Sheet Date and, prior to the date hereof or in Section 4.04 of the Disclosure Letterhereof, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company CMJ and its Subsidiaries have conducted their respective businesses only in the ordinary course course, consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been been:
(a) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on CMJ;
(b) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the Shares capital stock of CMJ or any repurchase, redemption or other acquisition by the Company CMJ or any of its Subsidiaries of any outstanding shares of their capital stock or other securities in, any CMJ Convertible Securities or other ownership interests in, the Company CMJ Subsidiary Convertible Securities;
(c) any amendment of any term of any outstanding security of CMJ or any of its Subsidiaries; ;
(bd) any entry into any employment agreement transaction or severance compensation agreement withcommitment made, or any increase in the rate contract, agreement or terms settlement entered into, by (including any acceleration of the right to receive payment)or judgment, of compensation payable order or to become payable by the Company decree affecting) CMJ or any of its Subsidiaries to, their respective directors, officers relating to its assets or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) acquisition or disposition of any Plan (as hereinafter definedmaterial amount of assets) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action relinquishment by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company CMJ or any of its Subsidiaries of any contract or other right, other than transactions, commitments, contracts, agreements, settlements or relinquishments in the ordinary course of their respective assetsbusiness and those contemplated by this Agreement;
(e) any change in any method of accounting or accounting practice by CMJ or any of its Subsidiaries, including write-downs except for any such change which is not material or which is required by reason of inventory a concurrent change in GAAP;
(f) except as set forth on Schedule 3.8, any (i) grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of accounts receivable CMJ or any of its Subsidiaries, (ii) entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of CMJ or any of its Subsidiaries, (iii) increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements or (iv) increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or senior employees of CMJ or any of its Subsidiaries, in each case, other than in the ordinary course of business consistent with past practice; or or
(hg) any entry into material Tax election made or changed, any agreement, commitment material audit settled or transaction by the Company which is any material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceamended Tax Returns filed.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 2.7 of the Seller Disclosure LetterSchedule, since July December 31, 1997, 2003 (ithe “Balance Sheet Date”):
(a) there has been no event or condition that has had (or is reasonably likely to result in) a Seller Material Adverse Effect;
(b) the Company and has not sold, transferred or otherwise disposed of, or agreed to sell, transferor otherwise dispose of, in a single transaction or series of related transactions, any material assets or properties; or entered, or agreed to enter, into any Contract granting any rights to purchase any of its Subsidiaries have not suffered material assets or properties or requiring the consent of any Material Adverse Effect or any change, condition, event or development that could reasonably be expected party to have a Material Adverse Effect, the consummation of the Contemplated Transactions;
(iic) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been cancelled or compromised, or agreed to cancel or compromise, any material debts or obligations owed to it or in its favor;
(ad) any declarationthe Company has not declared, setting set aside or payment of paid, directly or indirectly, any dividend or other distribution in with respect to its capital stock, redeemed any securities issued by it (including without limitation, shares of the Shares its capital stock) or made any repurchase, redemption or other acquisition by agreement to do so;
(e) the Company has not granted any increase in or otherwise changed the compensation of any of its Subsidiaries employees, officers, directors or independent contractors, paid or accrued any bonus or similar payment to any of any outstanding shares of capital stock such persons or other securities inentered into a new or amended an existing agreement, transaction or other ownership interests in, the Company or relationship with any of its Subsidiaries; officers, directors, independent contractors, shareholders or other Affiliates (bincluding, without limitation, any Employee Plan);
(f) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or has not changed any of its Subsidiaries toaccounting policies;
(g) the Company has not incurred or become subject to any direct, their respective directorsindirect or contingent obligation or liability, officers other than current obligations or employees, except increases to employees who are not officers or directors occurring liabilities incurred in the ordinary course of business in accordance with its customary the Business;
(h) the Company has not mortgaged, pledged or subjected to any Encumbrance (other than liens securing obligations that arise by operation of law and which secure obligations that are not past practices; (cdue) any increase in the rate of its material assets;
(i) no material assets owned or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action used by the Company whichhave been condemned, if requisitioned or otherwise taken after the date hereofby any Governmental Body or lost, would constitute a breach of any of the clauses of Section 6.01 hereofstolen, damaged or destroyed; and
(ej) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of has conducted the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than Business in the ordinary course of business course, consistent with its past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicepractices.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (contemplated by this Agreement or as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letterset forth on Schedule 3.8, since July 31, 1997, the Balance Sheet Date (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effecthas conducted the Business in the Ordinary Course of Business, (ii) there has not been with respect to the Business or the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreementa Seller Material Adverse Effect, and (iii) there has not been the Company:
(a) has not made any declaration, setting aside amendment to its Governing Documents or payment any amendment to the terms of any dividend its outstanding securities or other distribution equity interests;
(b) has not made any change in respect any method of the Shares accounting or accounting practice or policy other than those required by GAAP;
(c) has not suffered any repurchasematerial theft, redemption damage, destruction, loss or other acquisition casualty, whether or not covered by the Company or insurance, with respect to any of its Subsidiaries of properties;
(d) has not (i) agreed to award or pay, awarded or paid any outstanding shares of capital stock or other securities inbonuses to employees with respect to any period after the Balance Sheet Date, or other ownership interests in(ii) entered into or amended any written or material unwritten employment, the Company consulting, deferred compensation, severance, change in control, employee retention or any of its Subsidiaries; (b) any entry into any employment similar agreement or severance arrangements (except for entering into agreements or arrangements to employ or engage new employees or service providers on or after the Balance Sheet Date, in exchange for an annual compensation agreement withof less than $150,000), or any (iii) agreed to increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company to any officer, director, employee, consultant, agent or any representative of its Subsidiaries to, their respective directors, officers or employees, the Company (except for increases to the compensation payable to employees who are not officers or directors occurring were employed as of the Balance Sheet Date, by an amount, with respect to each such employee, consistent with prior practices in the ordinary course Ordinary Course of business in accordance with its customary past practices; Business), (civ) taken any increase in action to accelerate the rate vesting, funding or terms (including payment of any acceleration compensation or benefit for any officer, director, employee, consultant, agent or representative of the right Company, or (v) agreed to receive payment) of materially increase the coverage or benefits available under any Plan (as hereinafter defined) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or any other bonus, severanceincentive compensation, insurance, pension or any other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; Employee Benefit Plan;
(e) has not made any change by loans, advances or capital contributions to, or guarantees for the Company benefit of, or investments, or paid or reimbursed any fees to any Person (including any Affiliate of the Company), except for advances and reimbursements for business expenses to employees in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; the Ordinary Course of Business;
(f) has not incurred or assumed any labor disputematerial Indebtedness for borrowed money except unsecured current obligations and liabilities incurred in the Ordinary Course of Business;
(g) has not mortgaged, pledged or subjected to any Lien, other than routine individual grievancesPermitted Liens, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory assets or of accounts receivable other than in the ordinary course of business consistent with past practice; or properties;
(h) has not sold, leased, assigned, transferred, conveyed or otherwise disposed of any entry into material assets or properties, except in the Ordinary Course of Business;
(i) has not canceled, settled, compromised or accelerated any agreementIndebtedness or claim, commitment or transaction by amended, canceled, terminated, waived or released any Contract or right, except in the Company which Ordinary Course of Business and which, in the aggregate, is not and would not be material to the Company or the Business;
(j) has not instituted, settled or compromised any Legal Proceeding;
(k) has not entered into, or made any commitments for, any lease of capital equipment or real property, in each case, involving payments in excess of $100,000 per year;
(l) has not entered into any material transaction or entered into any transaction with any of its Affiliates, in each case, that was or not in the Ordinary Course of Business;
(m) has not committed to make any capital expenditures requiring any payment following the Closing Date in excess of $100,000 individually or $250,000 in the aggregate;
(n) has not materially changed the cash management practices of the Company and its Subsidiaries taken the policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits employed thereby;
(o) has not entered into, amended or modified in any material respect, waived any material rights under, or terminated any Material Contract (or any Contract that would be a Material Contract if in existence as a whole of the date hereof), other than any expiration of any such Material Contract or Contract in the ordinary course of business consistent accordance with past practiceits terms; and
(p) has not entered into any Contract or otherwise agreed to do, or taken any action that would reasonably be expected to result in, anything set forth in this Section 3.8.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Tetra Technologies Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since March 31, 19972011 (the “Company Balance Sheet Date”), (i) the Company SNBP and each of its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been occurred: (ai) any declarationchange, setting aside event or payment condition (whether or not covered by insurance) that has resulted in, or is reasonably likely to result in, a Material Adverse Effect on SNBP; (ii) any acquisition, sale or transfer of any dividend or other distribution in respect material asset of the Shares or any repurchase, redemption or other acquisition by the Company SNBP or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business and consistent with past practice; or (hiii) any entry into change in accounting methods or practices (including any agreementchange in depreciation or amortization policies or rates) by SNBP or any of its Subsidiaries or any revaluation by SNBP of any of its Subsidiaries’ assets; (iv) any declaration, commitment setting aside, or transaction by the Company which is material payment of a dividend or other distribution with respect to the Company and shares of SNBP, or any direct or indirect redemption, purchase or other acquisition by SNBP of any of its Subsidiaries taken as a whole shares of capital stock; (v) any material contract entered into by SNBP or any of its Subsidiaries, other than in the ordinary course of business, or any amendment or termination of, or default under, any material contract to which SNBP or any of its Subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Articles or bylaws of SNBP (if applicable); or (vii) any increase in or modification of the compensation or benefits payable, or to become payable, by SNBP or its Subsidiaries to any of its directors or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in the ordinary course of business and consistent with SNBP’s and its Subsidiaries past practicepractices. Neither SNBP nor its Subsidiaries has agreed since the Company Balance Sheet Date to take any of the actions described in the preceding clauses (i) through (vii) and are not currently involved in any negotiations to do any of the things described in the preceding clauses (i) through (vii).
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in Since the SEC Reports (as defined in Section 4.05) filed with Balance Sheet Date through the SEC prior to Agreement Date, the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries Group Companies have conducted their respective businesses only in the ordinary course of business consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been with respect to any Group Company any of the following:
(a) Material Adverse Effect;
(b) damage, destruction or loss of any material property or material asset, whether or not covered by insurance;
(c) amendment, modification, supplement or change in the Group Company Organizational Documents;
(d) declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of the Shares of, its equity interests, or any repurchasesplit, combination or recapitalization of its equity interests or any redemption or other acquisition by the Company or purchase of any of its Subsidiaries equity interests or any change in any rights, preferences or privileges of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; outstanding equity interests or issuance or authorization for issuance of any equity interests or any other security;
(be) incurrence, creation or assumption of (i) any entry into Encumbrance on any employment agreement of its assets or severance compensation agreement withproperties (other than Permitted Encumbrances), (ii) any liability for any Debt except as set forth in Company Closing Debt or (iii) any liability as a guarantor or surety with respect to the obligations of others;
(f) (i) hiring or termination of any consultant or director or employee related to the Company Business, (ii) payment, announcement, promise or grant of (whether orally or in writing) any increase in the rate or terms establishment of (including as applicable) any acceleration of the right to receive payment), form of compensation or benefits payable or to become payable by any ERISA Group Company with respect to a Relevant Service Provider, including (A) any increase or change pursuant to any Company Benefit Arrangement or acceleration of the vesting and payment of any compensation or benefits under any Company Benefit Arrangement, and (B) any increase or change pursuant to any Affiliate Plan or acceleration of the vesting and payment of any compensation or benefits under any Affiliate Plan, in each respect, as to Relevant Service Providers only, (iii) acceleration of: (A) the vesting or (B) the payment, of any compensation or benefits under any Company Benefit Arrangement, except as otherwise required by Applicable Law, or (iv) entry into, termination, adoption or amendment of any Company Benefit Arrangement in a manner that would result in a material cost to any Group Company or any of its Subsidiaries to, their respective directors, officers or employeesas to the service providers, except increases to employees who are not officers in each case, as required under the terms of a written Company Benefit Arrangement, or directors occurring as required by Applicable Law, except for changes in the ordinary course of business in accordance with its customary past practices; under clauses (ci) any increase and (iv) above, or changes in the rate ordinary course of business as to clauses (ii) and (iii) above as to the Relevant Service Providers whose acceleration or terms enhancement of benefits is not material in amount to such Relevant Service Provider;
(including any acceleration of the right to receive paymentg) The payment of any Plan (as hereinafter defined) or any other bonus, severance, insuranceprovision of COBRA benefits (or similar benefits), pension or other employee benefit plan, payment provision of any termination notice to any Person who would be a Relevant Service Provider had he or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after she remained in service through the date hereof, would constitute except as required under the terms of a breach written Company Benefit Arrangement or Affiliate Plan, or in the ordinary course of business;
(h) making by it of any loan, advance or capital contribution to, or extension of any existing loan, to any Person (other than advances of wages in the ordinary course of business and which will be repaid or forgiven as of the Closing);
(i) sale, license, assignment or other disposition or transfer of any of its material assets or properties, other than the sale or nonexclusive license of Company Products in the ordinary course of business consistent with past practice;
(j) re-valuation of any of the clauses assets of Section 6.01 hereof; the Group Companies or relating to the Company Business, including writing off notes or accounts receivable, except in the ordinary course of business consistent with past practice;
(ei) any change by deferral of the Company in accounting methods, principles payment of any accounts payable or practices except as required by changes in United States generally accepted accounting principles; (fii) any labor disputediscount, accommodation or other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof concession made in order to organize any employees of accelerate the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries collection of any of their respective assetsreceivable, including write-downs of inventory or of accounts receivable in both (i) and (ii) other than in the ordinary course of business consistent with past practice; ;
(l) except as required by GAAP, any change in accounting methods or any revaluation of any of its assets;
(hm) any entry into any Contract that would be required to be disclosed as an off-balance sheet arrangement under GAAP;
(n) modification, waiver, release or acceleration of any rights of a Company Material Contract or termination or cancellation of a Contract that would be required to be listed as a Company Material Contract pursuant to Section 3.12 hereof if such Contract were in effect on the Agreement Date, in each case only to the extent outside the ordinary course of business or inconsistent with past practice;
(o) sale, license, assignment, pledge, Encumbrance or other disposition or transfer of any material Company-Owned IP, other than the sale of Company Products in the ordinary course of business;
(p) labor dispute or collective bargaining obligation;
(q) except as set forth on Schedule 3.11(q) to the Seller Disclosure Letter, change in the classification of any Relevant Service Provider as to status between contractor versus employee or exempt employee versus non-exempt employee;
(r) (i) change in the classification of any Group Company under Treasury Regulations Section 301.7701-3, (ii) tax election, (iii) adoption or change in the method of tax accounting, (iv) filing of any amended Tax Return, (v) entrance into any tax allocation agreement, commitment tax sharing agreement tax indemnity agreement or transaction by closing agreement relating to any tax, (vi) surrender of any right to claim a tax refund, (vii) consent to any extension or waiver of the statute of limitations period applicable to any tax claim or assessment, or (viii) settlement or compromise of any claim, notice, audit report or assessment in respect of taxes;
(s) failure to pay or satisfy when due any material Liability of any Group Company which is material or related to the Company and its Subsidiaries taken as a whole Business other than delays in the payment of accounts payable in the ordinary course of business consistent with past practice;
(t) waiver, release, assignment, settlement or compromise of any material Action; or
(u) entry into any Contract to do any of the things described in the preceding clauses (a) through (t).
Appears in 1 contract
Sources: Share Purchase Agreement (Exar Corp)
Absence of Certain Changes. Except as disclosed set forth on Schedule 3.8 hereto or as contemplated by this Agreement, since October 29, 2002 there has not been: (a) any material change in the SEC Reports (as defined in Section 4.05) filed with assets, liabilities, sales, income or business of the SEC prior to the date hereof Company or any of its Subsidiaries or in Section 4.04 any of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect Company's or any changeof its Subsidiaries' relationships with suppliers, conditioncustomers or lessors, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only other than changes which arose in the ordinary course consistent with past practiceof business; (b) any acquisition or disposition by the Company or any of its Subsidiaries of any material asset or material property other than in the ordinary course of business; (c) any material damage, except in connection with the negotiation and execution and delivery of this Agreementdestruction or loss, and whether or not covered by insurance; (iii) there has not been (ad) any declaration, setting aside or payment of any dividend or any other distribution distributions in respect of the Shares Company's capital stock, other than dividends paid in kind on shares of Preferred Stock; (e) except for the issuance of shares pursuant to the exercise of the Non-Rollover Options, or in payment of a dividend on the Preferred Stock paid in kind in accordance with clause (d) above, any repurchase, redemption or other acquisition by issuance of any shares of the capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company Company's or any of its Subsidiaries' capital stock; (bf) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate compensation, pension or terms (including any acceleration of the right to receive payment), of compensation other benefits payable or to become payable by the Company or any of its Subsidiaries to, to any of their respective directors, officers or employees, except or any bonus payments or arrangements made to or with any of them (other than pursuant to the terms of any existing written agreement or plan or annual or periodic increases to employees who are not officers or directors occurring made in the ordinary course of business in accordance consistent with its customary the Company's or such Subsidiary's past practices; (c) any increase in practice and other than the rate or terms (including any acceleration payment of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employeesContract Termination Payments); (g) any revaluation entry by the Company or any of its Subsidiaries into any material transaction other than in the ordinary course of business or as contemplated herein; (h) any incurrence by the Company or any of its Subsidiaries of any material obligations or material liabilities, whether absolute, accrued, contingent or otherwise (including, without limitation, liabilities as guarantor or otherwise with respect to obligations of their respective assetsothers), including write-downs other than obligations and liabilities incurred in the ordinary course of inventory business or as contemplated herein; (i) any discharge or satisfaction by the Company or any of accounts receivable its Subsidiaries of any material lien or encumbrance or payment by the Company or any of its Subsidiaries of any material obligation or material liability (fixed or contingent) other than in the ordinary course of business consistent with past practiceor as contemplated herein; or (hj) any entry into forgiveness or cancellation of any agreement, commitment material debt or transaction claim by the Company which is or any of its Subsidiaries or any waiver of any right of material to value, in each case other than in the ordinary course of business; (k) any grant or creation of any material mortgage, pledge, lien, lease, security interest or other charge or encumbrance on any of the assets of the Company and or any of its Subsidiaries taken as a whole other than Permitted Encumbrances and other than in the ordinary course of business consistent or pursuant to a third party's pre-existing contractual right to obtain such mortgage, pledge, lien, lease, security interest or other charge or encumbrance; (l) any capital expenditures by the Company or any of its Subsidiaries which have exceeded $500,000 per expenditure or $500,000 in the aggregate; (m) any entry into or amendment by the Company or any of its Subsidiaries of (i) any written employment agreement that provides for a base salary in excess of $100,000 per annum and a term in excess of one (1) year or (ii) any collective bargaining agreement; (n) any material change in the accounting practices of the Company or any of its Subsidiaries; (o) any entry by the Company or any of its Subsidiaries into any transaction with past practiceany Affiliate; or (p) any commitment to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes. Except Since the date of the Balance Sheet and until the Original Closing Date, except as disclosed set forth in the SEC Reports (Schedule 4.8 or as defined in Section 4.05) filed with the SEC prior to specifically permitted after the date hereof or in pursuant to Section 4.04 7.1, the members of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries Enshi Group have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation prior practice and execution and delivery of this Agreement, and (iii) there has not been any:
(a) change in the authorized or issued capital stock of any declarationmember of the Enshi Group; grant of any stock option or right to purchase shares of capital stock of any member of the Enshi Group; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, setting aside redemption, retirement, or other acquisition by any member of the Enshi Group of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of such capital stock;
(b) amendment to the Shares or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries Organizational Documents of any outstanding shares member of capital stock the Enshi Group;
(c) payment or other securities inincrease by any member of the Enshi Group of any bonuses, salaries, or other ownership interests incompensation to any stockholder, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement withdirector, officer, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past prior practice; ) employee or (h) any entry into any agreementemployment, commitment severance, or similar Contract with any director, officer, or employee;
(d) adoption of, or increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any employees of any member of the Enshi Group;
(e) damage to or destruction or loss of any asset or property of any member of the Enshi Group, whether or not covered by insurance, that individually or in the aggregate could become or result in a Material Adverse Effect;
(f) entry into, termination of, or receipt of notice of termination of any Contract or transaction involving a total remaining commitment by or to any member of the Company which is material to the Company and its Subsidiaries taken as a whole Enshi Group of at least $10,000;
(g) sale (other than sales of inventory in the ordinary course of business consistent with past prior practice), lease, or other disposition of any asset or property or mortgage, pledge, or imposition of any Encumbrance on any asset or property with a value to any member of the Enshi Group in excess of $10,000;
(h) cancellation or waiver of any claims or rights with a value to any member of the Enshi Group in excess of $10,000;
(i) change in the accounting methods used by any member of the Enshi Group; or
(j) agreement, whether oral or written, by any member of the Enshi Group to do any of the foregoing.
Appears in 1 contract
Sources: Conditional Stock Purchase Agreement (China Biopharmaceuticals Holdings Inc)
Absence of Certain Changes. Except as disclosed in the SEC Company Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof hereof, in any Company press releases issued prior to the date hereof, or in Section 4.04 as set forth on SECTION 4.7. of the Company Disclosure LetterSchedule and except as otherwise provided in or contemplated by this Agreement, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changeAudit Date, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than according to, the ordinary and usual course consistent with past practice, except in connection with the negotiation of such businesses and execution and delivery of this Agreement, and (iii) there has not been been: (a) any change in the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, or any transaction, commitment, dispute or other event or, to the knowledge of the Responsible Executive Officers of the Company any other development or combination of developments, that, individually or in the aggregate, has had or is reasonably likely to result in a Company Material Adverse Effect; (b) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance; (c) any authorization, declaration, setting aside or payment of any dividend or other distribution in respect of the Shares or stock of the Company, except as permitted by SECTION 6.1. hereof; (d) any repurchase, redemption or other acquisition change by the Company in accounting principles, practices or methods other than as required by changes in applicable GAAP; (e) any of its Subsidiaries repurchase or redemption of any outstanding shares Shares; or (f) any material amendment, modification or termination of capital stock any material contract, license or other securities in, or other ownership interests in, permit to which the Company is a party or any which it holds. Since the Company Audit Date, except as provided for herein or as disclosed in the Company Reports filed prior to the date hereof or as set forth on SECTION 4.7. of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement withthe Company Disclosure Schedule, or there has not been any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to that could become payable by the Company or any of its Subsidiaries to, their respective directors, to officers at the senior vice president level or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) above or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach amendment of any of the clauses of Section 6.01 hereof; Company Compensation and Benefit Plans (e) any change by the Company as defined in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceSECTION 4.9.(a)).
Appears in 1 contract
Sources: Merger Agreement (Youth Services International Inc)
Absence of Certain Changes. Except as disclosed set forth in Section 2.7 of the Acacia Schedules, between December 31, 1998 (the "ACACIA BALANCE SHEET DATE") and the date hereof, there has not been, occurred or arisen, any:
(a) transaction by Acacia except in the SEC Reports ordinary course of business as conducted on that date and consistent with past practices;
(as defined in Section 4.05b) filed with the SEC prior amendments or changes to the date hereof certificate of incorporation or bylaws of Acacia;
(c) capital expenditure or commitment by Acacia, in any individual amount exceeding Twenty-Five Thousand Dollars ($25,000), or in Section 4.04 the aggregate, exceeding Fifty Thousand Dollars ($50,000);
(d) destruction of, damage to, or loss of the Disclosure Letterany assets (including, since July 31without limitation, 1997intangible assets), business or customer of Acacia (iwhether or not covered by insurance) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have which would constitute a Material Adverse Effect;
(e) claim of wrongful discharge by any employee of Acacia or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals) by Acacia or any revaluation by Acacia of any of its assets;
(iig) the Company and revaluation by Acacia of any of its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and assets;
(iiih) there has not been (a) any declaration, setting aside aside, or payment of any a dividend or other distribution in respect to the capital stock of the Shares Acacia, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or Acacia of any of its Subsidiaries capital stock, except repurchases of any outstanding shares Acacia Common Stock from terminated Acacia employees at the original per share purchase price of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; such shares;
(bi) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate salary or terms (including any acceleration of the right to receive payment), of other compensation payable or to become payable by the Company or Acacia to any of its Subsidiaries toofficers, their respective directors, officers employees or employeesadvisors of Acacia, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; , or (h) any entry into any agreementthe declaration, payment, or commitment or transaction obligation of any kind for the payment by Acacia of a bonus or other additional salary or compensation to any such person except as otherwise contemplated in this Agreement, or the Company which is material establishment of any bonus, insurance, deferred compensation, pension, retirement, profit sharing, stock option (including without limitation, the granting of stock options, stock appreciation rights, performance awards), stock purchase or other employee benefit plan;
(j) loan by Acacia to the Company and its Subsidiaries taken as a whole other than any person or entity, or guaranty by Acacia of any loan, except for (x) travel or similar advances made to employees in connection with their employment duties in the ordinary course of business business, consistent with past practicepractices, (y) trade payables not in excess of Ten Thousand Dollars ($10,000) in the aggregate and in the ordinary course of business, consistent with past practices and (z) pursuant to option exercises in accordance with the Acacia Stock Option Plan;
(k) waiver or release of any right or claim of Acacia, including any write-off or other compromise of any account receivable of Acacia, in excess of Twenty-Five Thousand Dollars ($25,000) in the aggregate;
(l) receipt by Acacia of any notice or threat of commencement of any lawsuit or proceeding against or, to the Acacia's knowledge, commencement of any lawsuit, proceeding or investigation of Acacia or its respective affairs;
(m) notice of any claim of ownership by a third party of Acacia's Intellectual Property (as defined in Section 2.12 below) or of infringement by Acacia of any third party's Intellectual Property rights;
(n) issuance or sale by Acacia of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities (other than option exercises in accordance with the Acacia Stock Option Plan);
(o) event or condition of any character that has or would reasonably be expected to have a Material Adverse Effect on Acacia; or
(p) agreement by Acacia, or any officer or employee of Acacia acting on behalf of Acacia to do any of the things described in the preceding clauses (a) through (o) (other than negotiations with Rosetta and its representatives regarding the transactions contemplated in this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Rosetta Inpharmatics Inc)
Absence of Certain Changes. Except Since the Company Interim Balance Sheet Date, and except as disclosed in the SEC Reports (as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 2.7 of the Disclosure Letter, since July 31, 1997Schedule, (ia) to the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changeknowledge of the Company, condition, there has occurred no event or development that which, individually or in the aggregate, has had, or could reasonably be expected to have in the future, a Company Material Adverse Effect, and (iib) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been taken any of the actions set forth below:
(a) issue or sell, or redeem or repurchase, any declarationstock or other securities of the Company or any Company Warrants, setting Company Options or other rights to acquire any such stock or other securities (except pursuant to the conversion or exercise of convertible securities or Company Options or Company Warrants outstanding on the date hereof), or amend any of the terms of (including without limitation the vesting of) any such convertible securities or Company Options or Company Warrants;
(b) split, combine or reclassify any shares of its capital stock; declare, set aside or payment of pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock;
(c) create, incur or assume any indebtedness (including obligations in respect of capital leases) except in the Shares Ordinary Course of Business or any repurchasein connection with the transactions contemplated by this Agreement; assume, redemption guarantee, endorse or other acquisition by otherwise become liable or responsible (whether directly, contingently or otherwise) for the Company or any of its Subsidiaries obligations of any outstanding shares of other person or entity; or make any loans, advances or capital stock contributions to, or other securities investments in, any other person or other ownership interests inentity;
(d) enter into, the Company adopt or amend any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement withEmployee Benefit Plan, as such term is defined below, or any employment or severance agreement or arrangement or (except for normal increases in the Ordinary Course of Business for employees who are not Affiliates), increase in any manner the rate compensation or fringe benefits of, or materially modify the employment terms (including any acceleration of the right to receive payment)of, of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers generally or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) individually, or pay any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension bonus or other employee benefit plan, payment or arrangement made to, for or with any such to its directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; ;
(e) acquire, sell, lease, license or dispose of any assets or property (including without limitation any shares or other equity interests in or securities of any corporation, partnership, association or other business organization or division thereof), other than purchases and sales of assets in the Ordinary Course of Business;
(f) mortgage or pledge any of its property or assets or subject any such property or assets to any Security Interest;
(g) discharge or satisfy any Security Interest or pay any obligation or liability other than in the Ordinary Course of Business;
(h) amend its charter, by-laws or other organizational documents;
(i) change by the Company in any material respect its accounting methods, principles or practices practices, except insofar as may be required by changes a generally applicable change in United States generally accepted accounting principles; GAAP;
(fj) enter into, amend, terminate, take or omit to take any action that would constitute a violation of or default under, or waive any rights under, any material contract or agreement;
(k) institute or settle any Legal Proceeding, as such term is defined below;
(l) take any action or fail to take any action permitted by this Agreement with the knowledge that such action or failure to take action would result in (i) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the representations and warranties of the Company set forth in this Agreement becoming untrue or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (gii) any revaluation by of the Company conditions to the Merger set forth in Article V not being satisfied; or
(m) agree in writing or otherwise to take any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceforegoing actions.
Appears in 1 contract
Sources: Merger Agreement (Atrinsic, Inc.)
Absence of Certain Changes. Except as disclosed and to the extent set forth on Schedule 3.10, since June 30, 1999 (the "Balance Sheet Date") neither the Company nor any of its Subsidiaries has:
(a) made any amendment to its Articles of Incorporation or Association or Bylaws or changed the character of its business in the SEC Reports any material manner;
(b) suffered any Material Adverse Effect (as defined in Section 4.0510.13(b));
(c) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry entered into any employment agreement agreement, commitment or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, transaction except increases to employees who are not officers or directors occurring in the ordinary course of business and consistent with prudent banking practices;
(d) except in accordance the ordinary course of business and consistent with prudent banking practices, incurred, assumed or become subject to, whether directly or by way of any guarantee or otherwise, any obligations or liabilities (absolute, accrued, contingent or otherwise);
(e) permitted or allowed any of its customary past property or assets to be subject to any mortgage, pledge, lien, security interest, encumbrance, restriction or charge of any kind (other than statutory liens not yet delinquent) except in the ordinary course of business and consistent with prudent banking practices; ;
(cf) except in the ordinary course of business and consistent with prudent banking practices, canceled any debts, waived any claims or rights, or sold, transferred, or otherwise disposed of any of its properties or assets;
(g) disposed of or permitted to lapse any rights to the use of any trademark, service mark, ▇▇ade name or copyright, or disposed of or disclosed to any person other than its employees or agents, any trade secret not theretofore a matter of public knowledge;
(h) except for regular salary increases granted in the ordinary course of business within the Company's or its Subsidiaries' 1999 budgets and consistent with prior practices, granted any increase in compensation or paid or agreed to pay or accrue any bonus, percentage compensation, service award, severance payment or like benefit to or for the rate credit of any director, officer, employee or terms agent, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended 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 acceleration of the right to receive payment) of deferred compensation, or collective bargaining agreement, any Plan (as hereinafter defined) group insurance contract or any other bonusincentive, severance, insurance, pension welfare or other employee benefit plan, payment program or arrangement made to, for or with any such directors, officers or employees; (d) any action agreement maintained by the Company whichor its Subsidiaries, if taken after for the date hereofdirectors, would constitute employees or former employees of the Company or its Subsidiaries ("Employee Benefit Plan");
(i) directly or indirectly declared, set aside or paid any dividend or made any distribution in respect to its capital stock or redeemed, purchased or otherwise acquired, or arranged for the redemption, purchase or acquisition of, any shares of its capital stock or other of its securities, except for dividends paid to the Company by its Subsidiaries;
(j) organized or acquired any capital stock or other equity securities or acquired any equity or ownership interest in any person (except through settlement of indebtedness, foreclosure, the exercise of creditors' remedies or in a breach fiduciary capacity, the ownership of which does not expose the Company or its Subsidiaries to any liability from the business, operations or liabilities of such person);
(k) issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the clauses issuance or sale of Section 6.01 hereof; or conversion into shares of its capital stock;
(el) made any or acquiesced with any change by the Company in any accounting methods, principles or practices except as required by changes practices;
(m) experienced any change in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, relations with customers or any activity or proceeding by a labor union or representative thereof to organize any employees clients of the Company or any Subsidiary, its Subsidiaries which employees were not then subject to could have a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by Material Adverse Effect on the Company or its Subsidiaries;
(n) except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any of its Subsidiaries of transaction, or entered into, modified or amended any of their respective assetscontract or commitment, including write-downs of inventory or of accounts receivable other than in the ordinary course of business and consistent with past practiceprudent banking practices; or
(o) agreed, whether in writing or (h) otherwise, to take any entry into any agreement, commitment or transaction by action the Company performance of which is material to would change the Company and its Subsidiaries taken as a whole other than representations contained in this Section 3.10 in the ordinary course future so that any such representation would not be true in all material respects as of business consistent with past practicethe Closing.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined described in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 -------------------------- 3.12 of the Company Disclosure LetterSchedule, since July 31the Company Balance Sheet Date, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary and usual course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been been:
(a) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company, 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 in, or other ownership interests in, the Company, other than the Redeemed Company Shares;
(b) any incurrence, assumption or guarantee by the Company or any of its Subsidiaries; the Company Subsidiaries of any outstanding amount of indebtedness for borrowed money or any other liabilities of any nature, whether or not accrued, contingent or otherwise, other than in the ordinary course of business;
(bc) any entry into any employment agreement transaction or severance compensation agreement withcommitment made, or any contract or agreement entered into, by the Company or any of the Company Subsidiaries relating to their respective assets or businesses (including the acquisition or disposition of any assets) or any loss or relinquishment by the Company or any of the Company Subsidiaries of any material contract or other material right, other than transactions and commitments in the ordinary course of business in accordance with their customary practices;
(d) any material change in any method of accounting or accounting practice or policy or application thereof by the Company or any of the Company Subsidiaries, except as required by GAAP;
(e) any increase in (or commitment, oral or written, to increase) the rate or terms (including including, without limitation, any acceleration of the right to receive payment), ) of compensation payable or to become payable by the Company or any of its the Company Subsidiaries to, to their respective directors, officers officers, employees or employeesconsultants, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practicesbusiness; or
(cf) any increase in (or commitment, oral or written, to increase) the rate or terms (including including, without limitation, any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit planplan or contract, payment or arrangement made to, for or with any such directorsdirector, officers officer, employee or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees consultant of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by of the Company or any of its Subsidiaries of any of their respective assetsSubsidiaries, including write-downs of inventory or of accounts receivable other than except increases occurring in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicebusiness.
Appears in 1 contract
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/)
Absence of Certain Changes. Except as disclosed in Since the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterBalance Sheet Date, since July 31, 1997, (i) the each Acquired Company and has operated its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with its past practice, except in connection with the negotiation practices and execution and delivery of this Agreement, and (iii) since such date there has not been with respect to an Acquired Company any:
(a) Material Adverse Change or any declarationchange, setting aside event, circumstance, condition or payment effect that would reasonably be expected to result in a Material Adverse Change;
(b) amendment or change in its Certificate of any dividend Incorporation or Bylaws (or other distribution in respect comparable charter documents);
(c) incurrence, creation or assumption of the Shares or (i) any repurchase, redemption or other acquisition by the Company or Encumbrance on any of its Subsidiaries assets or properties (other than Permitted Encumbrances), (ii) any Liability for borrowed money (other than trade liabilities incurred in the ordinary course of its business (including liabilities to creditors or employees for raw materials, inventories, services and supplies)), or (iii) any Liability as a guarantor or surety with respect to the obligations of others;
(d) acceleration or release of any outstanding vesting condition to the right to exercise any option, warrant or other right to purchase or otherwise acquire any shares of its capital stock, or any acceleration or release of any right to repurchase shares of its capital stock upon the stockholder’s termination of employment or other securities in, services with it or other ownership interests in, the Company pursuant to any right of first refusal;
(e) payment or discharge of any Encumbrance on any of its Subsidiaries; assets or properties, or payment or discharge of any of its Liabilities in an amount not in excess of $25,000 for any single Liability to a particular creditor, except in any to the extent shown on the Company Balance Sheet or done in the ordinary course of its business consistent with its past practices;
(bf) any entry into any employment agreement purchase, license, sale, grant, assignment or severance compensation agreement withother disposition or transfer, or any agreement or other arrangement for the purchase, license, sale, assignment or other disposition or transfer, of any of its assets (including Company IP Rights (as defined in Section 3.13(a)) and other intangible assets), properties or goodwill other than the sale or non-exclusive license of its products or services to its customers in the ordinary course of its business;
(g) damage, destruction or loss of any material property or asset having, whether or not covered by insurance;
(h) other than the Success and Retention Bonuses or as otherwise done in the ordinary course of its business in connection with a new hire, change or increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or to any of its Subsidiaries toofficers, their respective directors, officers directors or employees, or in any bonus, pension, severance, retention, insurance or other benefit payment or arrangement (including stock awards, stock option grants, stock appreciation rights or stock option grants) made to or with any of such officers, directors or employees;
(i) change with respect to its management, supervisory or other key personnel, any termination of employment of a material number of employees, or any labor dispute or claim of unfair labor practices;
(j) other than the Success and Retention Bonuses, liability incurred by it to any of its officers, directors or stockholders, except increases for normal and customary compensation and expense allowances payable to employees who are not officers or directors occurring in the ordinary course of its business in accordance consistent with its customary past practices; (c) any increase in the rate practices or terms (including any acceleration inter-company borrowings which will constitute Company Debt as of the right to receive paymentClosing Date;
(k) entering into, amendment of, relinquishment, termination or nonrenewal by it of any Plan (as hereinafter defined) or any other bonusCompany Material Contract, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of its business;
(l) making by it of any loan, advance or capital contribution to, or any investment in, any firm or business enterprise in which any of its officers, directors or stockholders or person had a direct or indirect material interest at the time of such loan, advance, capital contribution or investment;
(m) any default by it under any Material Contract (or other right or obligation), or any written or, to the Company’s knowledge, oral assertion that would reasonably be perceived as credible by the other party thereto of any material default under any such Company Material Contract or such other party’s specifically stated intention to terminate or not renew any such Company Material Contract;
(n) material change in the manner in which it extends discounts, credits or warranties to customers or otherwise deals with its customers;
(o) entering into by it of any Contract that by its terms requires or contemplates a current and/or future financial commitment, expense or obligation on its part that involves in excess of $50,000 per year and that is not entered into in the ordinary course of its business consistent with its past practice; practices;
(p) making or entering into any Contract with respect to any acquisition, sale or transfer of any material asset of the Company, other than the sale or non-exclusive license of its products or services to its customers in the ordinary course of its business;
(hq) any entry into change in accounting methods or practices (including any agreement, commitment change in depreciation or transaction by amortization policies or rates or revenue recognition policies) or any revaluation of any of its assets;
(r) any deferral of the Company which is material to the Company and its Subsidiaries taken as a whole payment of any accounts payable other than in the ordinary course of business its business, consistent with past practicepractices, or any discount, accommodation or other concession made other than in the ordinary course of its business, consistent with past practices, in order to accelerate or induce the collection of any receivable; or
(s) announcement of, or any entry into, any Contract to do any of the things described in the preceding clauses (a) through (r) (other than negotiations and agreements with Macrovision and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Macrovision Corp)
Absence of Certain Changes. Except as disclosed in Since the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterBalance Sheet Date, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except and nothing has occurred that would have been prohibited by Section 4.1 if the terms of such Section had been in connection with effect as of and after the negotiation Balance Sheet Date. Since the Balance Sheet Date and execution and delivery to the date of this Agreement, other than pursuant to this Agreement and (iii) the other Transaction Documents, there has not been (a) any event, circumstance, or fact (whether or not covered by insurance), individually or in the aggregate, that (i) has resulted in a Material Adverse Effect on the Company or (ii) is reasonably likely to result in a Material Adverse Effect on the Company other than, for purposes of this clause (ii), any effect resulting directly and primarily from changes in general economic conditions in Mexico (a "Material Adverse Change"); (b) any event, circumstance, or fact (whether or not covered by insurance), individually or in the aggregate, that materially impairs the operation of the physical assets of the Company or its Subsidiaries; (c) any material change by the Company in its accounting methods, principles or practices; (d) any declaration, setting aside or payment of any dividend or other distribution in respect of any capital stock of the Shares Company or its Subsidiaries (other than to the Company or its Subsidiaries) or any repurchaseredemption, redemption purchase or other acquisition by of any of the Company's or its Subsidiaries' securities (other than from the Company or its Subsidiaries); (e) other than as required by law, any of its Subsidiaries increase in, amendment to, or establishment of any outstanding shares of capital bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other securities inemployee benefit plan; (f) any general increase in compensation, bonus or other ownership interests in, benefits payable to the employees of the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except for increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employeespractice; (g) any revaluation by declaration or payment of any bonus to the employees of the Company except for bonuses accrued or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in otherwise reflected on the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken Company's unaudited balance sheet as a whole other than in the ordinary course of business consistent with past practice.of
Appears in 1 contract
Sources: Stock Purchase and Merger Agreement (Chancellor Media Corp of Los Angeles)
Absence of Certain Changes. Except as and to the extent set forth in Section 4.9 of the Company Disclosure Letter or disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterCompany Reports, since July December 31, 19972000, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreementsuch business, and (iii) there has not been (a) any Material Adverse Effect (or any event or condition that would reasonably be expected to result in a Material Adverse Effect) suffered by the Company or any of its subsidiaries; (b) any declaration, setting aside or payment of any dividend or other distribution in with respect to the capital stock of the Shares Company or its subsidiaries (other than wholly-owned subsidiaries) or, except as required by the Company's benefit plans, any repurchase, redemption or any other acquisition by the Company or any of its Subsidiaries subsidiaries of any outstanding shares of capital stock or other securities inof, or other ownership interests in, the Company or any of its Subsidiariessubsidiaries; (bc) any entry into any employment agreement change in accounting principles, practices or severance compensation agreement with, methods by the Company or its subsidiaries; (d) any increase in or commitment to increase the rate or terms remuneration (including salary, incentive compensation, benefits in severance or termination pay) of any acceleration director or employee of the right or consultant to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries tosubsidiaries, their respective directorswhether directly or indirectly (including by amendment, officers implementation or employeesthe entering into of any employment or employee benefit or compensation agreement, except increases plan or arrangement), by any amount in excess of $50,000 per annum (or, in the case of any executive officer of the Company or any such subsidiary, by any amount) other than any changes required by the current terms of any existing plan or agreement or pursuant to employees who are not officers this Agreement or directors occurring changes in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereofbusiness; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries subsidiaries of any of their respective assets, including other than normal recurring adjustments made in the ordinary course of business, including, without limitation, write-downs of inventory or write-offs of accounts receivable receivable; or (f) any transaction or commitment made by the Company or any of its subsidiaries to buy or sell any assets of the Company's business, other than sales of products or services in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicebusiness.
Appears in 1 contract
Absence of Certain Changes. Except as (a) disclosed in the Company SEC Reports (as defined in Section 4.05) Documents filed with the SEC prior to the date hereof or hereof, (b) disclosed in Section 4.04 3.7 of the Company Disclosure Letter, since July 31(c) contemplated by this Agreement or (d) occurring pursuant to the express terms of that certain Agreement and Plan of Merger dated as of September 30, 1997, among Westell, Kappa Acquisition Corp., a Delaware corporation, and the Company, since August 2, 1997, the Company has conducted its business in the ordinary and usual course and there has not been:
(i) the Company and its Subsidiaries have not suffered any Material Adverse Effect transaction, commitment, dispute or any change, condition, other event or development that could reasonably be expected to have a Material Adverse Effect, condition (iifinancial or otherwise) the Company and its Subsidiaries have conducted their respective businesses only of any character (whether or not in the ordinary course consistent with past practiceof business) which, except alone or in connection with the negotiation and execution and delivery of this Agreementaggregate, and has had or would have a Company Material Adverse Effect;
(iii) there has not been (aii) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company 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 inof, or other ownership interests in, the Company or such Subsidiary;
(iii) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; ;
(biv) any entry into acquisition, sale or transfer of any employment agreement or severance compensation agreement with, material assets of the Company or any increase in the rate or terms of its Subsidiaries;
(including v) any acceleration of the right to receive payment), of compensation payable or to become payable material contract entered into by the Company or any of its Subsidiaries toor any material amendment or termination of, their respective directorsor default under, officers any Material Agreement;
(vi) any making of any loan, advance or employeescapital contributions to or investment in any Person other than loans, except increases advances or capital contributions to employees who are not officers or directors occurring investments in wholly-owned Subsidiaries of the Company made in the ordinary course of business in accordance with its customary past practices; (c) any increase and payroll, travel and similar advances made in the rate or terms ordinary course of business;
(including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (evii) any change by the Company in any method of accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation practice by the Company or any of its Subsidiaries Subsidiaries, except as required by GAAP; or
(viii) any entering into of any severance, termination pay, employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of their respective assetsthe Company or any of its Subsidiaries, including write-downs increase in benefits payable under any existing severance or termination pay policies or employment agreements or increase in compensation, bonus or other benefits payable to directors, officers or employees of inventory the Company or any of accounts receivable its Subsidiaries, other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicebusiness.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed set forth in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Company Disclosure Letter, since July December 31, 19972004 to the date hereof, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses in all material respects only in accordance with the ordinary course of such businesses consistent with past practice, except in connection with the negotiation practices and execution and delivery of this Agreement, and (iii) there has not been been:
(ai) any event, change, effect or development or combination of any event, change, effect or development that, individually or in the aggregate, has had or would be reasonably likely to have a Company Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the Shares Company or any of its Subsidiaries (except for dividends or other distributions by any direct or indirect wholly owned Subsidiary to the Company or to any direct or indirect wholly owned Subsidiary of the Company, and other than the distribution of the Rights), or other than pursuant to any Stock Plan or the exercise of any Warrant, any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, of the Company or any of its Subsidiaries; ;
(biii) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable action taken by the Company or any of its Subsidiaries tothat, their respective directorsif taken during the period from the date of this Agreement through the Effective Time, would constitute a breach of Sections 6.1(h), (k), (l), (m) or (n) hereof;
(iv) (A) any increase in the compensation payable or to become payable to its officers or employees, employees with annual base compensation in excess of $75,000 (except for compensation increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business and consistent with past practice; ) or (hB) any establishment, adoption, entry into or material amendment of any collective bargaining, bonus, profit sharing, thrift, compensation, employment, termination, severance or other plan, agreement, commitment trust, fund, policy or transaction by arrangement for the Company which is material benefit of any director, or for the benefit of all employees or any individual officer or employee with annual base compensation in excess of $75,000, except to the Company and its Subsidiaries taken as a whole other than in extent required by applicable Laws; or
(v) any agreement to do any of the ordinary course of business consistent with past practiceforegoing.
Appears in 1 contract
Sources: Merger Agreement (Sourcecorp Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since December 31, 19972000, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Target Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practicepractice and there has not occurred: (i) a Material Adverse Effect with respect to the Target Company; (ii) any acquisition, except sale or transfer of any asset or property of the Target Company or any of its Subsidiaries, other than in connection the ordinary course of business and consistent with past practice or any impairment, damage, destruction, loss or claim not covered by insurance, or condemnation or other taking adversely in any respect any of the negotiation and execution and delivery Target Company's or any of this Agreement, and its Subsidiaries' tangible assets; (iii) there has not been any change in accounting methods or practices (aincluding any change in depreciation or amortization policies or rates) by the Target Company or any revaluation by the Target Company of any of its or any of its Subsidiaries' assets; (iv) any declaration, setting aside aside, or payment of any a dividend or other distribution in with respect to the shares or member interests, as the case may be, of the Shares Target Company, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Target Company of any of its shares of capital stock, any member interests or other voting or equity securities; (v) any contract entered into by the Target Company or any of its Subsidiaries, other than in the ordinary course of business and as made available to Parent, or any amendment or termination of, or default under, any contract to which the Target Company or any of its Subsidiaries is a party or by which it or any of their respective assets or properties is bound; (vi) any outstanding shares amendment or change to the articles or certificate of capital stock incorporation or bylaws or other securities in, or other ownership interests in, comparable organizational documents of the Target Company or any of its Subsidiaries; (bvii) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration modification of the right to receive payment), of compensation or benefits payable or to become payable by the Target Company or any of its Subsidiaries to, to any of their respective directors, officers or employees, except increases to employees who are not officers or directors occurring other than (in the ordinary course case of business in accordance with its customary past practices; (cnon-executive officer employees) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; (viii) any change in the risk management and hedging policies, procedures or practices of the Target Company or any of its Subsidiaries, or any failure to comply with such policies, procedures and practices; or (hix) any entry into any agreement, commitment negotiation or transaction agreement by the Target Company which is material or any of its Subsidiaries to do any of the Company things described in the preceding clauses (i) through (viii) (other than negotiations with Parent and its Subsidiaries taken Representatives (as a whole other than defined in Section 15.4) regarding the ordinary course of business consistent with past practicetransactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (E Trade Group Inc)
Absence of Certain Changes. Except as disclosed set forth in Section 2.8 of the Target Disclosure Schedule, since the Balance Sheet Date there has not been, occurred or arisen any:
(a) transaction by Target except in the SEC Reports ordinary course of business as conducted on that date and consistent with past practices;
(as defined in Section 4.05b) filed with the SEC prior amendments or changes to the date hereof Certificate of Incorporation or Bylaws of Target;
(c) capital expenditure or commitment by Target, in any individual amount exceeding $25,000, or in Section 4.04 the aggregate, exceeding $75,000;
(d) destruction of, damage to, or loss of any assets (including, without limitation, intangible assets), business or customer of Target (whether or not covered by insurance) which would, individually or in the Disclosure Letteraggregate, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have constitute a Material Adverse Effect;
(e) claim of wrongful discharge or other material unlawful labor practice;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals, or any change in capitalization of software development costs) by Target;
(iig) the Company and revaluation by Target of any of its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and assets;
(iiih) there has not been (a) any declaration, setting aside aside, or payment of any a dividend or other distribution in respect to the capital stock of the Shares Target, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or Target of any of its Subsidiaries capital stock, except repurchases of any outstanding shares of capital stock Target Capital Stock from terminated Target employees or other securities in, service providers at the original per share purchase price of such shares or other ownership interests in, the Company or any of its Subsidiaries; as otherwise contemplated by this Agreement;
(bi) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate salary or terms (including any acceleration of the right to receive payment), of other compensation payable or to become payable by the Company or Target to any of its Subsidiaries toofficers, their respective directors, officers employees or employeesadvisors of Target, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; , or (h) any entry into any agreementthe declaration, payment, or commitment or transaction obligation of any kind for the payment by the Company which is material Target of a bonus or other additional salary or compensation to the Company and its Subsidiaries taken any such person except as a whole otherwise contemplated by this Agreement, or other than as set forth in Section 2.16 below, the establishment of any bonus, insurance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other employee benefit plan;
(j) sale, lease, license or other disposition of any of the assets or properties of Target, except in the ordinary course of business business;
(k) termination or material amendment of any material contract, agreement or license to which Target is a party or by which it is bound;
(l) loan by Target to any person or entity, or guaranty by Target of any loan, except for (x) advances made to employees in connection with their employment duties in the ordinary course of business, consistent with past practicepractices and (y) trade payables not in excess of $50,000 in the aggregate and in the ordinary course of business, consistent with past practices;
(m) waiver or release of any right or claim of Target, including any write-off or other compromise of any account receivable of Target, in excess of $25,000 in the aggregate;
(n) the commencement or notice or threat of commencement of any lawsuit or proceeding against or, to Target's knowledge, investigation of Target or its affairs;
(o) notice of any claim of ownership by a third party of Intellectual Property of Target (as defined in Section 2.13(a) below) or of infringement by Target of any Third Party Intellectual Property Rights (as defined in Section 2.13(b) below), except for certain allegations made by Yield Dynamics, Inc. relating to Intellectual Property (as defined in Section 2.13(a) below) of Target (the "Special Litigation Matter");
(p) change in pricing or royalties set or charged by Target to its customers or licensees or, to Target's knowledge, in pricing or royalties set or charged by persons who have licensed Intellectual Property to Target;
(q) event or condition of any character that has or could, given Target's past practices, reasonably be expected to have, individually or in the aggregate with other such events or conditions, a Material Adverse Effect on Target; or
(r) agreement by Target or any officer or employee of Target on behalf Target to do any of the things described in the preceding clauses (a) through (q) (other than negotiations with Acquiror and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (PDF Solutions Inc)
Absence of Certain Changes. Except as disclosed in the Company SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof of this Agreement and as otherwise contemplated or in Section 4.04 of the Disclosure Letterpermitted hereby, since July 31September 30, 1997, 1998 (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (iia) the Company and its Subsidiaries have conducted their respective businesses only in all material respects in the ordinary course consistent of such businesses and there have not been any changes to the condition (financial or otherwise), assets, liabilities, business or results of operations of the Company and its Subsidiaries, or any other developments with past practicerespect to the Company or any of its Subsidiaries, except in connection each case whether or not in the ordinary course of business, that, in the aggregate with the negotiation all other changes and execution and delivery of this Agreementdevelopments, have had, or would reasonably be expected to have, a Company Material Adverse Effect, and (iiib) there has not been (ai) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) in respect of any shares of the capital stock or other equity securities, or any securities convertible, exercisable or exchangeable for or into shares of capital stock or other equity securities, of the Company or any of its Subsidiaries, other than (x) quarterly cash dividends of $.27 per share in respect of the Shares outstanding Company Common Stock and (y) dividends and distributions by wholly owned Subsidiaries of the Company; (ii) any change by the Company to its accounting policies, practices or methods; (iii) other than in connection with the exercise, exchange or conversion of Company Equity Equivalent Securities, any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other equity securities inor any securities convertible, exchangeable or exercisable for or into shares of capital stock or other ownership interests inequity securities, of the Company or any of its Subsidiaries; (biv) except as required by applicable law or pursuant to contractual obligations existing as of September 30, 1998, (w) any entry into execution, establishment, adoption or amendment of, or acceleration of rights or benefits under, any agreement relating to severance, any Company Employee Plan, any employment or consulting agreement or severance compensation agreement withany collective bargaining agreement, or (x) any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by to any officer, director or employee of the Company or any of A-18 20 its Subsidiaries to, their respective directors, officers or employees, (except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; business), (cy) any increase in the rate grant of any severance or terms (including termination paid to any acceleration officer or director of the right to receive paymentCompany, or (z) any grant of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension stock options or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable equity related awards other than in the ordinary course of business consistent with past practice; or (hv) any entry agreement or commitment entered into any agreement, commitment or transaction by the Company which is material with respect to the foregoing. The Company and its Subsidiaries taken as a whole other than has determined prior to the date of this Agreement all annual increases in the ordinary course of business consistent with past practiceto the compensation of officers of the Company contemplated to be made in calendar year 1999.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (contemplated by this Agreement or as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 3.14 of the Disclosure LetterSchedule, since July 31the date of the Unaudited Financial Statements, 1997the Companies have conducted their respective operations in the Ordinary Course of Business and there has not been:
(a) any event, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event occurrence or development that could which has had, or would be reasonably be expected likely to have have, a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; ;
(b) any entry into change in any employment method of accounting or accounting practice by ▇▇▇▇▇▇ Ranch or the Subsidiary (except for any such change required by reason of a concurrent change in GAAP or as such changes from IFRS as are required to be made to prepare the Audited Financial Statements);
(c) any (A) employment, deferred compensation, severance, retirement or other similar agreement entered into, modified or severance compensation agreement withterminated between either of the Companies on the one hand, and any director, officer or employee of either of the Companies (or any increase in amendment to any such existing agreement) on the rate other, (B) grant of any severance or terms (including termination pay to any acceleration director, officer or employee of either of the right to receive payment)Companies for which either of the Companies is liable, of compensation payable (C) change (other than in connection with hiring or to become payable by the Company or any of its Subsidiaries to, their respective firing directors, officers or employees) in compensation or other benefits payable by either of the Companies to any director, officer or employee of either of the Companies other than any changes in the Ordinary Course of Business, or (D) hiring or firing any employee other than in the Ordinary Course of Business, except increases in each case for changes made with respect to all employees who are not officers or directors occurring in under the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee RTA welfare and benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; plans generally;
(d) any action sale, assignment, conveyance, license, lease or other disposition of any Coal Leases, Mineral and/or Real Properties, Water Rights, Heavy Equipment, Permits or Material Contracts of either of the Companies or imposition of any Encumbrance (other than Permitted Encumbrances) on any Mineral and/or Real Properties or any other material asset or property of the Companies, except in the Ordinary Course of Business;
(e) any delay or postponement of the payment of accounts payable and other liabilities outside the Ordinary Course of Business;
(f) any cancellation, compromise, waiver or release of any right or claim (or series of related rights and claims) either involving more than One Million Dollars (US$1,000,000) or outside the Ordinary Course of Business;
(g) any write-down or write-off of the value of any material asset, except for write-downs or write-offs of accounts receivable or inventories in the Ordinary Course of Business or otherwise required for the preparation of the Audited Financial Statements;
(h) any other transaction or commitment made, or any Material Contract entered into, by any of the Company whichCompanies relating to their respective assets or business, other than transactions, commitments and Material Contracts in the Ordinary Course of Business and those contemplated by this Agreement;
(i) except as to any Excluded Return, any filing of any amended Tax Return, settlement of any Tax Claim or assessment relating to any of the Companies, extension or waiver of the limitation period applicable to any Tax Claim or assessment relating to any of the Companies, or any other similar action, if taken such election, change, adoption, filing, settlement, extension, waiver or other action would have the effect of increasing the Tax liability or reducing any Tax asset or attribute of any of the Companies for any period ending after the date hereofClosing Date;
(j) any purchase by ▇▇▇▇▇▇ Ranch or the Subsidiary of any interests in surface property, would coal property or oil and gas rights or any lease arrangement (whether as a lessor or lessee or sublessor or sublessee) entered into by ▇▇▇▇▇▇ Ranch or the Subsidiary with respect to surface property, coal property or oil and gas rights, other than in the Ordinary Course of Business or as otherwise contemplated in this Agreement;
(k) any action taken by Seller, any of its Affiliates, ▇▇▇▇▇▇ Ranch or the Subsidiary or, to the Knowledge of Seller, by another person on behalf of Seller, any of its Affiliates, ▇▇▇▇▇▇ Ranch or the Subsidiary that will or may reasonably be expected to cause or constitute a breach of any provision of the clauses of Section 6.01 hereofthis Agreement; or
(el) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment whether or transaction not in writing, to do any of the foregoing by any of the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceCompanies.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Arch Coal Inc)
Absence of Certain Changes. Except as disclosed contemplated by this Agreement or as set forth on Schedule 5.21 attached hereto, since September 30, ------------- 2000, there has not been, occurred or arisen with respect to the Company or MMC:
(1) any sale, lease, transfer, abandonment or other disposition of any right, title or interest in or to any of the properties or assets of the Company or MMC used in connection with the operations of the Schools (tangible or intangible) in excess of $20,000.00, in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, aggregate;
(i) any approval or action to put into effect any increase in any compensation or benefits payable to any employee, agent or officer of the Company and its Subsidiaries have not suffered any Material Adverse Effect or MMC employed or providing services in connection with the operation of the Schools or any changepayment, conditiongrant or accrual to or for the benefit of any such employee, event agent or development that could reasonably be expected to have a Material Adverse Effectofficer of any bonus, service award, percentage compensation or other benefit, (ii) any adoption or amendment of any Plans, or any severance agreement or employment contract to which any such employee, agent or officer of the Company and its Subsidiaries have conducted their respective businesses only or MMC is a party or (iii) any entering into of any employment, deferred compensation or other agreements with respect to bonuses, service awards, percentage compensation or other benefits with any such employee, agent or officer;
(3) any material adverse change in the financial condition, assets, liabilities (absolute, accrued, contingent or otherwise), reserves or operations of the Company;
(4) any damage, destruction or loss to the assets, business or operations of the Company, whether or not covered by insurance in excess of $20,000.00, in the aggregate;
(5) any material change in the business policies or practices of the Company or a failure to operate the business of the Schools in the ordinary course consistent with past practicea view to (i) preserving such business intact, except (ii) retaining the services of the present officers, employees and agents of the Company employed or providing services in connection with the negotiation and execution and delivery operation of this Agreementthe Schools, and (iii) there has not been preserving the business relationships of the Schools with, and the goodwill of, students, sales representatives, suppliers, accrediting bodies, governmental authorities and others;
(a6) any declarationagreement, setting aside whether in writing or payment otherwise, to take any action described in this Section 5.21; or
(7) any withdrawal, revocation or denial of any dividend or other distribution in respect of the Shares 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 inaccreditation, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement withorder to show cause why accreditation should not be revoked, or any increase in the rate revocation, termination or terms (including any acceleration denial of the right license to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievancesoperate, or any activity termination or proceeding suspension of eligibility to participate in the federal student financial aid programs authorized by a labor union or representative thereof to organize any employees of Title IV, for the Company Schools, or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation program offered by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceSchools.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed set forth in Schedule 3.10, since September 30, 2005 (the "VEDO BALANCE SHEET DATE") there has not been with respect to VEDO:
(a) any change in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof financial condition, properties, assets, employees, liabilities, business or operations thereof which change by itself or in Section 4.04 conjunction with all other such changes, whether or not arising in the ordinary course of the Disclosure Letterbusiness, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect has had or any change, condition, event or development that could reasonably be expected to have a Material Adverse EffectEffect on VEDO;
(b) any contingent liability incurred by VEDO as guarantor or otherwise with respect to the obligations of others;
(c) any mortgage, trust, pledge, encumbrance or lien placed on any of the assets or properties of VEDO (iiexcept as permitted under Section 3.9)
(d) the Company any material obligation or liability incurred by VEDO, other than obligations and its Subsidiaries have conducted their respective businesses only liabilities incurred in the ordinary course consistent with past practiceof business;
(e) any purchase or sale or other disposition, except or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets of VEDO other than in connection with the negotiation ordinary course of business in amounts which are not material to VEDO and execution and delivery other than the sale or disposition of this Agreementinventory in the ordinary course of business;
(f) any damage, and destruction or loss, whether or not covered by insurance, that has or could reasonably be expected to result in a Material Adverse Effect on VEDO;
(iii) there has not been (ag) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock of VEDO, any split, combination or recapitalization of the Shares capital stock of VEDO or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by of the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; VEDO;
(bh) any entry into labor dispute or claim of unfair labor practices, any employment agreement or severance compensation agreement with, or any increase change in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or to any of its Subsidiaries toVEDO's officers, their respective directors, officers or employees, consultants or agents (except normal annual merit or cost of living increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; practice which are not material in amount), or any bonus payment or arrangement made to or with any of such officers, employees, consultants or agents;
(hi) any entry into any agreement, commitment payment or transaction by discharge of a material lien or liability of VEDO which lien or liability was not either shown on the Company which is material to the Company and its Subsidiaries taken as a whole other than VEDO Balance Sheet or incurred in the ordinary course of business thereafter consistent with past practice;
(j) any obligation or liability incurred by VEDO to any of its officers, employees, directors or stockholders or any loans or advances made by VEDO to any of its officers, employees, directors or stockholders except normal compensation and expense allowances payable to officers;
(k) any issuance of shares of VEDO Stock or grant or issuance of any options, warrants or other rights to acquire VEDO Stock from VEDO, or any offer, issuance or sale by VEDO of, any debt or equity securities of VEDO (except for the issuance of VEDO Stock upon exercise of outstanding options or warrants of VEDO);
(l) any agreement, action or omission not otherwise referred to in subsections (a) through (k) that resulted in a Material Adverse Effect on VEDO; or
(m) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing subsections (a) through (l).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Villageedocs Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 2.7 of the Company Disclosure LetterSchedule, since July December 31, 19972000, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practicepractice and there has not occurred (i) any Material Adverse Effect on Company or any of its Subsidiaries, except in connection with (ii) any event that could reasonably be expected to prevent or materially delay the negotiation and execution and delivery performance of this AgreementCompany's obligations pursuant to the Transaction Agreements or the consummation of the Merger by Company, and (iii) there has not been any change by Company or any of its Subsidiaries in its accounting methods, principles or practices, (aiv) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares or any repurchase, redemption or other acquisition by the shares of capital stock of Company or any of its Subsidiaries or any redemption, purchase or other acquisition of any outstanding shares of capital Company's or any of its Subsidiaries' securities, (v) any increase in the compensation or benefits or establishment or payment 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 securities inemployee benefit plan, or any other ownership interests inincrease in the compensation payable or to become payable to any employees, the officers, consultants or directors of Company or any of its Subsidiaries; , (bvi) any entry issuance, grants or sale of any stock, options, warrants, notes, bonds or other securities, or entering into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable with respect thereto by the Company or any of its Subsidiaries toSubsidiaries, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (cvii) any increase in amendment to the rate Certificate of Incorporation or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension bylaws or other employee benefit plancharter documents, payment or arrangement made toas applicable, for or with any such directors, officers or employees; (d) any action by the of Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company 13 or any of its Subsidiaries of any of their respective assetsSubsidiaries, including write-downs of inventory or of accounts receivable (viii) other than in the ordinary course of business consistent with past practice; , any (w) capital expenditures, (x) purchase, sale, assignment or transfer of any material amount of assets, (y) mortgage, pledge or existence of any lien, encumbrance or charge on any assets or properties, tangible or intangible, except for liens for taxes not yet due and such other liens, encumbrances or charges which do not, individually or in the aggregate, have a Material Adverse Effect on Company or any of its Subsidiaries, or (hz) cancellation, compromise, release or waiver of any rights of material value or any material debts or claims by Company or any of its Subsidiaries, (ix) any entry incurrence of any material liability (absolute or contingent) by Company or any of its Subsidiaries, except for current liabilities and obligations incurred in the ordinary course of business consistent with past practice, (x) any incurrence of any damage, destruction or similar loss, whether or not covered by insurance, materially affecting the business or properties of Company or any of its Subsidiaries, (xi) any entering into any agreement, commitment contract, lease or transaction license by the Company which is material to the Company and or any of its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice, (xii) any acceleration, termination, modification or cancellation of any agreement, contract, lease or license to which Company or any of its Subsidiaries is a party or by which any of them is bound, (xiii) any entering into any loan or other transaction by Company or any of its Subsidiaries with any officers, directors or employees of Company or any of its Subsidiaries, (xiv) any charitable or other capital contribution or pledge therefore by Company or any of its Subsidiaries, (xv) any entering into any transaction of a material nature by Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, or (xvi) any negotiation or agreement by Company or any of its Subsidiaries to do any of the things described in the preceding clauses (i) through (xv).
Appears in 1 contract
Sources: Merger Agreement (Endorex Corp)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letterexpressly contemplated by this Agreement, since July December 31, 19972010, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course in all material respects and in a manner consistent in all material respects with past practice, except in connection with the negotiation prior practice and execution and delivery of this Agreement, and (iii) there has not been any Company Material Adverse Effect. Since the date of the Company Balance Sheet, neither the Company nor any of its Subsidiaries has:
(a) any declaration(i) declared, setting set aside or payment paid any dividends on, or made any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent), (ii) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any dividend or other distribution securities in respect of, in lieu of the Shares or any repurchase, redemption or other acquisition by the Company in substitution for shares of its capital stock or any of its Subsidiaries of other securities or (iii) purchased, redeemed or otherwise acquired any outstanding shares of its capital stock or any other of its securities inor any rights, warrants or options to acquire any such shares or other ownership interests insecurities, except, in the case of this clause (iii), for the acquisition of shares of Company Common Stock (A) from holders of Company Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Options to the extent required or permitted under the terms of such Company Options or (B) from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of services to the Company or any of its Subsidiaries; ;
(b) issued, delivered, sold, granted, pledged or otherwise disposed of or encumbered any entry shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any employment agreement rights, warrants or severance compensation agreement options to acquire, any such shares, voting securities or convertible or exchangeable securities (other than the issuance of shares of Company Stock upon the conversion of Company Preferred Stock or the exercise of Company Options outstanding on the date of this Agreement); * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission.
(c) amended its certificate of incorporation, by-laws or other comparable charter or Organizational Documents;
(d) acquired (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any increase stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, in the rate or terms (including any acceleration of the right aggregate, to receive payment), of compensation payable or to become payable by the Company or any of and its Subsidiaries toSubsidiaries, their respective directors, officers or employeestaken as a whole, except increases to employees who are not officers or directors occurring purchases of inventory, supplies and raw materials in the ordinary course of business consistent in accordance all material respects with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; practice;
(e) any change by the Company in accounting methodssold, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor disputeleased, other than routine individual grievancesassigned, transferred, conveyed, licensed, pledged, or otherwise disposed of or encumbered any activity material properties or proceeding by a labor union or representative thereof to organize any employees material assets of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of and its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent in all material respects with past practice; ;
(f) (i) incurred any Indebtedness, (ii) made any loans, advances (other than routine advances to employees of the Company or any of its Subsidiaries in the ordinary course of business consistent in all material respects with past practice) or capital contributions to, or investment in, any other Person, other than the Company or any of its direct or indirect wholly owned Subsidiaries, other than investments, in the ordinary course of business consistent in all material respects with past practice, in debt securities maturing not more than 90 days after the date of investment or (hiii) permitted any entry into material assets to be subject to a Lien other than a Permitted Lien;
(g) made any agreementcapital expenditures or other expenditures with respect to property, commitment plant or transaction by equipment in excess of $200,000 in the Company which is material to aggregate for the Company and its Subsidiaries Subsidiaries, taken as a whole whole, other than as set forth in the Company’s budget for capital expenditures previously made available to the Buyer;
(h) made any material changes in accounting methods, principles or practices, except as required by a change in GAAP;
(i) made, changed or revoked any material election in respect of Taxes, adopted or changed any material accounting method in respect of Taxes, filed any material amendment to a material Tax Return, settled any material claim or assessment in respect of Taxes, or consented to any extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes;
(j) settled any material action, cause of action, suit, claim, investigation, audit, hearing or proceeding, whether civil, criminal, administrative or arbitral, whether at law or in equity;
(k) entered into, amended, modified or terminated any employment or consulting agreement involving annualized base compensation in excess of $100,000; * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission.
(l) recognized, or entered into any collective bargaining agreement or any other agreement with, a labor or trade union, employee association, works council, or other employee representative;
(m) increased the compensation or benefits payable or paid, whether conditionally or otherwise, to any director, officer, employee, or consultant, other than in the ordinary course of business consistent in all material respects with past practice or reimbursed any employee for any taxes to the extent such taxes have been or could be incurred solely as a result of the Merger;
(n) except (i) as required by applicable law, adopted, amended in any material respect, suspended or terminated any Company Employee Plan or Foreign Employee Benefit Plan and/or (ii) in accordance with the terms thereof as in effect on the date of the Company Balance Sheet, increased in any material respect any benefits under any Company Employee Plan or Foreign Employee Benefit Plan other than any increases required by applicable law;
(o) hired or engaged any officer, director, employee, independent contractor or other agent or service provider on a full-time, part-time, consulting, independent contractor or other basis with annualized compensation in excess of $100,000;
(p) instituted any new, or modified any existing, severance or termination pay or benefits practices or entered into any arrangement with any current or former employee, director, independent contractor or agent entitling such person to a payment due upon a change of control or other liquidity event of the Company or any of its Subsidiaries;
(q) written up or written down any of its material assets other than as required by GAAP;
(r) transferred, assigned, exclusively licensed, failed to maintain, abandoned or otherwise disposed of any material Intellectual Property Rights (other than in the ordinary course of business consistent in all material respects with past practice) or disclosed a material trade secret to a third party that is not subject to a duty of confidentiality in favor of the Company or its Subsidiaries;
(s) failed to make any capital expenditures as contemplated in Section 3.6(s) of the Company Disclosure Schedule in excess of $50,000 in the aggregate;
(t) entered into any contract or agreement that would materially restrict the ability of the Company and/or its Subsidiaries to engage in any business activity in any geography;
(u) reduced the amount of insurance coverage or failed to renew any existing insurance policy that is material to the business; or
(v) authorized any of, or committed or agreed to take any of, the foregoing actions. * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in contemplated by this Agreement or as set forth on Schedule -------- 4.27 attached hereto, from the SEC Reports (as defined in Section 4.05) filed with the SEC prior to Interim Balance Sheet Date until the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) ---- there has not been been, occurred or arisen:
(a) any declarationsale, setting aside lease, transfer, abandonment or payment other disposition of any dividend right, title or other distribution interest in respect or to any of the Shares properties or any repurchase, redemption or other acquisition by assets of the Company or any of its Subsidiaries of any outstanding shares of capital stock the Subsidiary (tangible or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive paymentintangible), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; business;
(cb) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business the Company's and the Subsidiary's operations and consistent with the Company's and the Subsidiary' past practice; and present business practices, (i) any approval or action to put into effect any increase in any compensation or benefits payable to any employee, director, agent or officer of the Company or the Subsidiary, or any payment, grant or accrual to or for the benefit of any such employee, director, agent or officer of any bonus, service award, percentage compensation or other benefit, (ii) any adoption or amendment of any Plans, or any severance agreement or employment contract to which any such employee, director, agent or officer is a party or (hiii) any entry entering into of any agreementemployment, commitment deferred compensation or transaction other agreements with respect to bonuses, service awards, percentage compensation or other benefits with any such employee, director, agent or officer;
(c) any material adverse change in the financial condition, assets, liabilities (absolute, accrued, contingent or otherwise), business prospects, reserves or operations of the Company or the Subsidiary which would have a material adverse effect;
(d) any capital expenditure by the Company which is material or the Subsidiary;
(e) any damage, destruction or loss, whether or not covered by insurance, materially adverse to the assets, business, or operations of the Company and its Subsidiaries taken as or the Subsidiary;
(f) any change in any material respect in the business policies or practices of the Company or the Subsidiary or a whole other than failure of the Company or the Subsidiary to operate the Schools in the ordinary course with a view to preserving such businesses intact, to retaining the services of the present officers, employees and agents, except for Sellers other than Gross, and with a view to preserving the business consistent with past practice.relationships of the Company and the Subsidiary, including without limitation business relationships of the Schools with, and the goodwill of, students, sales representatives, suppliers, Accrediting Bodies, Governmental Bodies and others; or
(g) any written agreement, or otherwise binding agreement, to take any action described in this Section 4.27. ------------
Appears in 1 contract
Absence of Certain Changes. Except Since the Balance Sheet Date, except as disclosed set forth in Schedule 2.10, there has not been with respect to VTI:
(a) Any change in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof financial condition, properties, assets, liabilities business, results of operations or prospects of VTI, which change by itself or in Section 4.04 conjunction with all other such changes, whether or not arising in the ordinary course of the Disclosure Letterbusiness, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect has had or any change, condition, event or development that could can reasonably be expected to have a Material Adverse Effectmaterial adverse effect on VTI;
(b) Any contingent liability incurred by VTI as guarantor or surety with respect to the obligations of others;
(c) Any material mortgage, encumbrance or lien placed on any of the properties of VTI;
(iid) the Company and its Subsidiaries have conducted their respective businesses only Any material obligation or liability incurred by VTI other than in the ordinary course consistent with past practiceof business;
(e) Any purchase or sale or other disposition, except or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets of VTI other than in connection with the negotiation ordinary course of business;
(f) Any damage, destruction or loss, whether or not covered by insurance, materially and execution and delivery adversely affecting the properties, assets or business of this Agreement, and VTI;
(iiig) there has not been (a) any Any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock of VTI, any split, stock dividend, combination or recapitalization of the Shares capital stock of VTI or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by VTI of the Company or any of its Subsidiaries of any outstanding shares of capital stock of VTI;
(h) Any material labor dispute or other securities inclaim of material unfair labor practices, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase change in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company to any of VTI's officers, employees or agents earning compensation at an anticipated annual rate in excess of $1,000. or any bonus payment or arrangement made to or with any of its Subsidiaries tosuch officers, their respective directorsemployees or agents; or any change in the compensation payable or to become payable to any of VTI's other officers, officers employees or employeesagents other than normal annual compensation increases in accordance with past practices or any bonus payment or arrangement made to or with any of such other officers, except increases employees or agents other than normal bonuses or other arrangements made in accordance with past practices;
(i) Any material change with respect to employees who are the management, supervisory, development or other key personnel of VTI (the management, supervisory, development and other key personnel of VTI being listed on Schedule 2.10(i));
(j) Any payment or discharge of a material lien or liability thereof, which lien or liability was not officers or directors occurring either
(i) Shown on the balance sheet as of the Balance Sheet Date included in the VTI Interim Financial Statements or
(ii) Incurred in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereofBalance Sheet Date; or
(k) Any obligation, would constitute a breach of or material liability incurred by VTI to any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methodsits officers, principles directors or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievancesshareholders, or any activity loans or proceeding by a labor union or representative thereof advances made to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assetsofficers, including write-downs of inventory directors, shareholders or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material affiliate except normal compensation and expense allowances payable to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceofficers.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in contemplated by the SEC Reports (Transaction Documents or as defined in Section 4.05) filed with set forth on Schedule 2.9, from the SEC prior Valuation Date to the date hereof or in Section 4.04 of the Disclosure Letterthis Table of Contents Agreement, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses has operated only in the ordinary course of business consistent with past practice, except in connection with the negotiation practices and execution and delivery of this Agreement, and (iii) there has not been any:
(a) change in the Company’s authorized or issued Membership Interests or the Subsidiary’s authorized and issued equity interests; grant of any declarationoption, setting aside right to purchase or similar right regarding the Membership Interests of the Company or equity interests of the Subsidiary; purchase, redemption, retirement, or other acquisition by the Company of any such Membership Interests or by the Subsidiary of any such equity interests; declaration or payment of any dividend or other distribution or payment (including debt service) in respect of the Shares Membership Interests of the Company or equity interests of the Subsidiary since the Valuation Date; split, combination or reclassification of any repurchaseof the Membership Interests of the Company or equity interests of the Subsidiary or issuance or authorization for the issuance of any other securities in respect of, in lieu of, or in substitution for any of the Company’s or the Subsidiary’s other securities, or granted any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of the Company’s Membership Interests or the Subsidiary’s equity interests; or purchase, redemption or other acquisition of any of the Company’s Membership Interests or the Subsidiary’s equity interests or any rights warrants or options to acquire any such Membership Interests or equity interests;
(b) damage to or destruction or loss of any asset or property of the Company whether or not covered by insurance, which has had or could be reasonably likely to, individually or in the aggregate, have a Material Adverse Effect;
(c) incurrence of indebtedness or guarantee of debt or other liability of any third party by the Company, or incurrence of indebtedness or guarantee of debt of any third party by the Subsidiary;
(d) change in the accounting policies, procedures, methods or principles, collection policies, pricing policies or payment policies used by the Company, other than (i) write-downs or write-offs in the value of assets as required by U.S. GAAP, or (ii) such adjustments as may be required by U.S. GAAP as a result of the transactions contemplated by this Agreement, or change in the accounting policies, procedures, methods or principles, collection policies, pricing policies or payment policies used by the Subsidiary, other than (x) write-downs or write-offs in the value of assets as required by Mexican GAAP, or (y) such adjustments as may be required by Mexican GAAP as a result of the transactions contemplated by this Agreement;
(e) change in the assets, liabilities, condition (financial or other), properties, business, operations or prospects of the Company, which change by itself or in conjunction with all other such changes, whether or not arising in the ordinary course of business, has had or could be reasonably likely to, individually or in the aggregate, have a Material Adverse Effect;
(f) mortgage, lien or other encumbrance placed on any of the properties of the Company or, to the Sellers’ knowledge, its Subsidiaries, other than purchase money liens and liens for taxes not yet due and payable; Table of Contents
(g) purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets by the Company involving the payment or any receipt of its Subsidiaries more than $50,000, or purchase, sale or other disposition of any outstanding shares properties or assets by the Subsidiaries involving the payment or receipt of capital stock any amount, in either case from the Valuation Date through June 30, 2006;
(h) payment or other securities in, discharge of a lien or other ownership interests in, liability of the Company which was not shown on the Balance Sheet or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring incurred in the ordinary course of business in accordance with its customary past practices; thereafter;
(ci) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action contingent liability incurred by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles as guarantor or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or otherwise with respect to such employees; (g) any revaluation by the Company obligations of others or any of its Subsidiaries cancellation of any material debt or claim owing to, or waiver of their respective assetsany material right of, the Company, including any write-downs off or compromise of inventory or of any accounts receivable other than in the ordinary course of business consistent with past practice; ;
(j) obligation or (h) any entry into any agreement, commitment or transaction liability incurred by the Company which is material or the Subsidiary to any of its directors or the Sellers, or any loans or advances made by the Company or the Subsidiary to any of its directors or the Sellers;
(k) amendment or termination of any material contract or agreement to which the Company is a party or by which it is bound;
(l) change in magnitude or method of determination of the servicing fee under the existing servicing agreements or in the Servicing Costs and its Subsidiaries taken Asset Level Expenses, each as a whole defined in the Servicing Agreement;
(m) other transaction entered into by the Company or the Subsidiary other than transactions in the ordinary course of business consistent business;
(n) except as provided in this Agreement, any amendment to the Company Certificate or Company LLC Agreement or the Subsidiary’s Deed of Incorporation or Bylaws;
(o) change in collection practices of the Subsidiary with past practicerespect to its Portfolio;
(p) made any Tax election with respect to the Company or any Subsidiary, settled or compromised any Tax liability, extended any statute of limitations with respect to Taxes, or otherwise changed in any material respect the tax policies of the Company or any of its Subsidiaries;
(q) prepayment of any loans from its Subsidiary, members, managers, officers, or directors to any Person affiliated with any of the foregoing, (ii) change in its borrowing arrangements, (iii) modification, amendment or termination of any of its or the Subsidiary’s material contracts, except as specifically provided in this Agreement, or (iv) waiver, release or assignment of any material rights or claims; and Table of Contents (r) entering into any written agreement to do any of the actions described in clauses (a) through (q).
Appears in 1 contract
Sources: Interest Purchase and Sale Agreement (Firstcity Financial Corp)
Absence of Certain Changes. Except as disclosed set forth in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterSchedule 3.6 hereto, since July 31May 6, 19971999, there has not been:
(ia) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, Any event or development that could may reasonably be expected to have a material adverse effect on the business, properties, results of operations, condition (financial or otherwise) or prospects of VantageNet (each a "Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; ");
(b) any entry into any employment agreement or severance compensation agreement with, or any Any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) modification of any Plan (as hereinafter defined) or any other bonus, severancepension, insurance, pension insurance or other employee benefit plan, payment or arrangement (including, without limitation, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any such directors, officers of VantageNet's directors or employees; ;
(c) Any declaration, setting aside or payment of dividends or distributions in respect of the capital stock of VantageNet, or any split-up or other recapitalization in respect of the capital stock of VantageNet or any direct or indirect redemption, purchase or other acquisition of any such capital stock of VantageNet or any agreement to do any of the foregoing;
(d) Any issuance, transfer, sale or pledge by VantageNet of any action shares of its capital stock or other securities or of any commitment, option, right or privilege under which VantageNet is or may become obligated to issue any shares of its capital stock or other securities;
(e) Any alteration in any term of any outstanding securities of VantageNet;
(f) Any change in the accounting methods, practices or policies followed by VantageNet from those in effect during the Company whichpast year;
(g) Any sale, if taken after assignment, or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets of material value by VantageNet;
(h) Any change in or amendment to the date hereofCertificate of Incorporation or Bylaws of VantageNet; or
(i) Any agreement or commitment, would constitute a breach of whether written or oral, by VantageNet to do any of the clauses of things described in this Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice3.6.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (About Com Inc)
Absence of Certain Changes. Except as disclosed Since the date of the Most Recent Balance Sheets, and other than in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof Ordinary Course of Business or in connection with this Agreement or any Related Agreement or the transactions contemplated hereby or thereby, and except as set forth on Section 4.04 4.1(e) of the Disclosure LetterSchedule, since July 31there has not been, 1997with respect to the Business or the any Company Party, any:
(i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changeevent, condition, event occurrence or development that has had, or could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect, ;
(ii) amendment of the organizational documents of any Company Party;
(iii) issuance, sale or other disposition of any of its Equity Securities or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its Equity Securities;
(iv) declaration or payment of any non-cash dividends or non-cash distributions on or in respect of any of its Equity Securities or redemption, purchase or acquisition of its Equity Securities;
(v) change in any method of accounting or accounting practice of any Company Party;
(vi) change in any of any Company Party’s cash management practices and its Subsidiaries have conducted their respective businesses only policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, Inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(vii) entry into any Contract that would constitute a Material Contract;
(viii) incurrence, assumption or guarantee of any Indebtedness, except unsecured current obligations (including any amounts incurred with respect to any credit card of the Business) and liabilities incurred in the ordinary course Ordinary Course of Business consistent with past practice;
(ix) transfer, except assignment, sale or other disposition of any of the assets of any Company Party or cancellation of any debts or entitlements, in each case in excess of an aggregate of $25,000 and excluding sales of inventory in the Ordinary Course of Business;
(x) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Owned IP or other Intellectual Property Rights other than nonexclusive licenses granted in the Ordinary Course of Business;
(xi) termination, material modification to or cancellation of any Material Contract to which any Company Party is a party or by which it is bound other than expirations or extensions in accordance with the terms of such Material Contract;
(xii) any capital expenditures in excess of $50,000;
(xiii) imposition of any Encumbrance that is not a Permitted Encumbrance upon any of any Company Party’s properties, capital stock or assets, tangible or intangible;
(A) grant of any bonuses or increase in any wages, salary, severance, pension or other compensation or benefits in any material respect in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any written agreements provided to Purchasers or any Employer Benefit Plan or required by Law, (B) change in the terms of employment for any employee or any termination of any employees, in each case for which the aggregate costs and expenses exceed $50,000, or (C) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(xv) adoption, modification or termination of any: (A) employment, severance, retention or other agreement with any current or former officer, (B) Employee Benefit Plan, other than in connection with the negotiation and execution and delivery renewal or replacement of this AgreementEmployee Benefit Plan on substantially similar terms or (C) collective bargaining or other agreement with a union, in each case whether written or oral, other than, in the case of clauses (A) and (iiiB), in the Ordinary Course of Business;
(xvi) there has not been entry into a new line of business or abandonment or discontinuance of existing lines of business;
(axvii) any declaration, setting aside or payment adoption of any dividend plan of merger, consolidation, reorganization, liquidation or other distribution dissolution or filing of a petition in respect bankruptcy under any provisions of federal or state bankruptcy law or consent to the Shares or filing of any repurchasebankruptcy petition against it under any similar Law;
(xviii) purchase, redemption lease or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive paymentown, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of compensation payable Inventory or to become payable supplies in the Ordinary Course of Business;
(xix) acquisition by merger or consolidation with, or by purchase of a substantial portion of the Company assets or stock of, or by any other manner, any business or any of its Subsidiaries toPerson or any division thereof;
(xx) action by any Company Party to make, their respective directors, officers change or employees, except increases to employees who are not officers rescind any Tax election or directors occurring in the ordinary course of business in accordance with its customary past practices; amend any Tax Return;
(cxxi) any increase in the rate or terms (including any acceleration of the right to receive payment) occurrence of any Plan Company Party not being Solvent; or
(as hereinafter definedxxii) or entry into any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of Contract to do any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceforegoing.
Appears in 1 contract
Sources: Purchase Agreement (Medicine Man Technologies, Inc.)
Absence of Certain Changes. Except Since the Balance Sheet Date, except as disclosed -------------------------- set forth in Schedule 2.10, there has not been with respect to Visionary: -------------
(a) Any change in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof financial condition, properties, assets, liabilities business, results of operations or prospects of Visionary, which change by itself or in Section 4.04 conjunction with all other such changes, whether or not arising in the ordinary course of the Disclosure Letterbusiness, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect has had or any change, condition, event or development that could can reasonably be expected to have a Material Adverse Effectmaterial adverse effect on Visionary;
(b) Any contingent liability incurred by Visionary as guarantor or surety with respect to the obligations of others;
(c) Any material mortgage, encumbrance or lien placed on any of the properties of Visionary;
(iid) the Company and its Subsidiaries have conducted their respective businesses only Any material obligation or liability incurred by Visionary other than in the ordinary course consistent with past practiceof business;
(e) Any purchase or sale or other disposition, except or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets of Visionary other than in connection with the negotiation ordinary course of business;
(f) Any damage, destruction or loss, whether or not covered by insurance, materially and execution and delivery adversely affecting the properties, assets or business of this Agreement, and Visionary;
(iiig) there has not been (a) any Any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock of Visionary, any split, stock dividend, combination or recapitalization of the Shares capital stock of Visionary or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by Visionary of the Company or any of its Subsidiaries of any outstanding shares of capital stock of Visionary;
(h) Any material labor dispute or other securities inclaim of material unfair labor practices, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase change in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company to any of Visionary's officers, employees or agents earning compensation at an anticipated annual rate in excess of $1,000, or any bonus payment or arrangement made to or with any of its Subsidiaries tosuch officers, their respective directorsemployees or agents; or any change in the compensation payable or to become payable to any of Visionary's other officers, officers employees or employeesagents other than normal annual compensation increases in accordance with past practices or any bonus payment or arrangement made to or with any of such other officers, except increases employees or agents other than normal bonuses or other arrangements made in accordance with past practices;
(i) Any material change with respect to employees who are the management, supervisory, development or other key personnel of Visionary (the management, supervisory, development and other key personnel of Visionary being listed on Schedule 2.10(i)); ----------------
(j) Any payment or discharge of a material lien or liability thereof, which lien or liability was not officers or directors occurring either
(i) Shown on the balance sheet as of the Balance Sheet Date included in the Visionary Financial Statements; or
(ii) Incurred in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereofBalance Sheet Date; and
(k) Any obligation, would constitute a breach of or material liability incurred by Visionary to any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methodsits officers, principles directors or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievancesshareholders, or any activity loans or proceeding by a labor union or representative thereof advances made to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assetsofficers, including write-downs of inventory directors, shareholders or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material affiliate except normal compensation and expense allowances payable to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceofficers.
Appears in 1 contract
Absence of Certain Changes. Except Since the Balance Sheet Date, except as disclosed in the Company SEC Reports (as defined in Section 4.05) Documents filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997hereof, (i) the Company and each Company Subsidiary has conducted its Subsidiaries respective business only in the ordinary and usual course, (ii) there have not suffered occurred any Material Adverse Effect events, changes, effects or circumstances (including the incurrence of any changeliabilities of any nature, conditionwhether or not accrued, event contingent or development that otherwise) having or which could reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a1) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (2) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Shares or Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Options awarded prior to the date hereof, (3) (A) any repurchase, redemption or other acquisition granting by the Company or any of its Subsidiaries of to any outstanding shares of capital stock current or former director, executive officer or other securities in, or other ownership interests in, key employee of the Company or any its Subsidiaries of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in compensation, bonus or other benefits, except for normal increases in the rate ordinary course of business or terms (including as was required under any acceleration employment agreements identified on the Company Disclosure Schedule in effect as of the right to receive payment)date hereof, of compensation payable or to become payable (B) any granting by the Company or any of its Subsidiaries toto any such current or former director, their respective directors, officers executive officer or employeeskey employee of any increase in severance or termination pay, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; business, or (cC) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation entry by the Company or any of its Subsidiaries of into, or any of their respective assetsamendment of, including write-downs of inventory any employment, deferred compensation, consulting, severance, termination or of accounts receivable indemnification agreement with any such current or former director, executive officer or key employee, other than in the ordinary course of business consistent with past practice; business, (4) except insofar as may have been disclosed in the Company SEC Documents or (h) required by a change in U.S. GAAP, any entry into any agreementchange in accounting methods, commitment principles or transaction practices by the Company which is material to materially affecting its assets, liabilities or business or (5) except insofar as may have been disclosed in the Company and its Subsidiaries taken as a whole other than SEC Documents, any tax election that individually or in the ordinary course aggregate would reasonably be expected to have a Company Material Adverse Effect on the Company or any of business consistent with past practiceits tax attributes or any settlement or compromise of any material income tax liability.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Triple S Plastics Inc)
Absence of Certain Changes. (a) Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letterset forth on Schedule 3.6, since July 31the Balance Sheet Date, 1997, (i) the each Acquired Company and has conducted its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses business only in the ordinary course Ordinary Course of Business consistent with that Acquired Company’s past practice, except in connection with the negotiation practices and execution policies and delivery of this Agreement, and (iii) there has not been and would not reasonably expect there to be:
(ai) any Material Adverse Effect;
(ii) any destruction, loss or other Damages, whether covered by insurance or not, materially and adversely affecting the assets, properties or business of the Acquired Companies;
(iii) a hire or engagement of an employee or independent contractor earning an annual base salary in excess of $100,000.00;
(iv) any grant of or increase in, or creation of a contractual right to, compensation or benefits payable or to become payable by any Acquired Company to any of its directors, officers, employees, independent contractors or agents;
(v) any adoption, amendment or termination of a collective bargaining agreement or Benefit Plan or Company Plan other than amendments required to comply with applicable Legal Requirements;
(vi) other than in the Ordinary Course of Business, any sale, assignment, lease, transfer, license, abandonment, or other disposition by the Acquired Companies of any interest in its assets;
(vii) any declaration, setting aside aside, or payment of any dividend or other distribution on or in respect of shares of the Shares capital stock of the Company, or any repurchasedirect or indirect redemption, redemption retirement, purchase, or other acquisition by any Acquired Company of any such shares;
(viii) any stock dividend, stock split, reorganization, recapitalization, or other change of any type whatsoever in the Company outstanding capital stock of the Company;
(ix) any amendment to the Organizational Documents of the Company;
(x) any change in the accounting methods followed by the Acquired Companies;
(xi) any entry into, termination, or receipt of notice of termination of any Material Contract;
(xii) any payment of any obligation or Liability other than current Liabilities or obligations disclosed in the Acquired Companies’ books and records and current Liabilities or obligations incurred since the Balance Sheet Date in the Ordinary Course of Business;
(xiii) any incurrence, other than immaterial obligations or Liabilities incurred in the Ordinary Course of Business, of any obligations or Liabilities;
(xiv) any waiver, cancellation, writing off, or writing down, other than in the Ordinary Course of Business, of any rights or claims of the Acquired Companies;
(xv) any material change in the manner of the Acquired Companies’ ▇▇▇▇▇▇▇▇, or the credit terms made available by it, to any of its Subsidiaries customers;
(xvi) any failure to replenish inventories and supplies in the Ordinary Course of Business;
(xvii) any outstanding shares distribution of capital stock property or assets by the Acquired Companies other securities in, or other ownership interests in, than in the Company or Ordinary Course of Business;
(xviii) any Encumbrance imposed upon any of its Subsidiaries; the assets, properties or rights of the Acquired Companies;
(bxix) any default on any material obligation or obligations;
(xx) any transaction not in the Ordinary Course of Business consistent with past practices;
(xxi) any entry into any employment agreement new line of business or severance compensation agreement acquisition of any business organization or division thereof;
(xxii) except as otherwise permitted by this Agreement, any entry into any loan or advance of any money or other property to, or entry into any other transaction with, any employee of the Acquired Companies or any increase in the rate or terms (including any acceleration Affiliate of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; Acquired Companies;
(cxxiii) any increase in the rate establishment, adoption, entry into, amendment, or terms (including any acceleration of the right to receive payment) termination of any Plan compensation plan, agreement, program, policy, trust, or fund of any Acquired Companies;
(as hereinafter definedxxiv) or any other bonus, severance, insurance, pension settlement of any litigation providing for injunctive or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; equitable relief;
(d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (hxxv) any entry into any agreementjoint venture, partnership or similar arrangement for the conduct of business;
(xxvi) any new and material capital expenditures or agreements to make any new and material capital expenditures;
(xxvii) any delay or postponement of any payment of accounts payable and other Liabilities; or
(xxviii) any authorization, agreement or commitment or transaction by to do any of the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceforegoing actions.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in (a) Since the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterBalance Sheet Date, since July 31, 1997, (i) the Company and its Subsidiaries have there has not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have been a Material Adverse Effect.
(b) Since the Balance Sheet Date, (ii) the each Target Group Company and its Subsidiaries have has conducted their respective businesses only in the ordinary course consistent with past practicepractices and there has not been:
(i) any change in the contingent obligations of any Target Group Company by way of guarantee, except endorsement, indemnity, warranty or otherwise, individually in connection with excess of RMB500,000 or in excess of RMB1,000,000 in the negotiation and execution and delivery aggregate;
(ii) any damage, destruction or loss of this Agreementany property or asset of any Target Group Company, and whether or not covered by insurance;
(iii) there has any waiver by any Target Group Company of a valuable right or claim or cancellation or waiver of a debt;
(iv) any satisfaction or discharge of any Encumbrance or payment of any obligation by any Target Group Company;
(v) any change, amendment to or termination of a Material Contract or arrangement by which any Target Group Company or any assets or properties of any Target Group Company is bound or subject;
(vi) any transactions with any of directors or employees, or any members of their families of any Target Group Company or any entity controlled by any of such individuals;
(vii) any entry into arrangements or any plans to enter into arrangements to (A) terminate, establish, adopt, enter into, make any new awards of benefits under, amend or otherwise modify any Employee Benefit Plan, or increase the salary, wage, bonus or other compensation of any directors, officers, employees or individual consultants of any Target Group Company; (B) increase the coverage or benefits available under any severance pay, termination pay, vacation pay, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other Employee Benefit Plan; (C) grant any equity or equity-based award; (D) accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity-based awards, other than as expressly provided in this Agreement or the other Transaction Documents; (E) hire any executive employees; or (F) loan or advance any money or property to any current or former employee or director;
(viii) any resignation or termination of any Key Employee;
(ix) any disposition, transfer, expiration or lapse of assets of any Target Group Company, including any license, assignment or transfer of any Intellectual Property of any Target Group Company;
(x) any mortgage, pledge, transfer of a security interest in, or Encumbrance created by any Target Group Company, with respect to any of such Target Group Company’s properties or assets, except for Encumbrance for Taxes not been yet due or payable;
(axi) any debt, obligation, or liability incurred, assumed or guaranteed by any Target Group Company individually in excess of RMB500,000 or in excess of RMB1,000,000 in the aggregate;
(xii) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares any Target Group Company’s Equity Securities or registered capital, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by any Target Group Company of any Equity Securities of any Target Group Company;
(xiii) any capital expenditures made by any Target Group Company individually in excess of RMB500,000 or in excess of RMB1,000,000 in the aggregate;
(xiv) any acquisitions of material assets by any Target Group Company;
(xv) any acquisitions of Equity Securities of any person or the whole or any substantial part of the undertaking, assets or business of any other person or entering into any joint venture or partnership with any other person, by any Target Group Company;
(xvi) any formation of any Subsidiary by any Target Group Company;
(xvii) any issuances or sales of Equity Securities of any Target Group Company or any of its Subsidiaries share splits, reclassifications, share dividends, share combinations or other recapitalizations of any outstanding shares Equity Securities of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; Target Group Company;
(bxviii) any entry into merger, consolidation, recapitalization, reorganization, share exchange, liquidation or winding up or similar transactions involving any employment Target Group Company;
(xix) any change in accounting policy or methods or Tax elections of any Target Group Company; or
(xx) any agreement or severance compensation agreement with, or commitment by any increase in the rate or terms (including any acceleration of the right Target Group Company to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of do any of the clauses of items described in this Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice6.9.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the extent arising out of or relating to the Chapter 11 Cases, this Agreement or the Transactions, from January 2, 2019 through the date hereof or of this Agreement, the Business has been conducted in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only all material respects in the ordinary course of business consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been been:
(a) any material damage, destruction or other casualty loss with respect to any asset or property owned, leased or otherwise used by the Company or its Subsidiaries, whether or not covered by insurance;
(b) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock or other Equity Interests of the Shares Company or its Subsidiaries (except for dividends or other distributions by any direct or indirect wholly owned Subsidiary to such Person or to any wholly owned Subsidiary of such Person), 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 in, or other ownership interests in, Equity Interests of the Company or any of its Subsidiaries; ;
(bc) any entry into material change in any employment agreement method of accounting or severance compensation agreement with, accounting practice by the Company or its Subsidiaries;
(d) (i) any material increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by to the officers or employees of any of the Company or any of its Subsidiaries to, their respective directors, or material increases in the benefits of such officers or employees, employees (except for increases to in the compensation of non-officer employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business and consistent with past practice; or ), (hii) any entry into entrance into, adoption, material amendment or termination of any agreement, commitment Debtor Plan (or transaction by any arrangement that would have been a Debtor Plan were it in effect as of the Company which date of this Agreement) that is or would be material to the Company and its Subsidiaries Subsidiaries, taken as a whole or (iii) any actions taken by the Company and its Subsidiaries to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other than way secure the payment, of any material compensation or benefits under any Debtor Plan, taken as a whole, except, in each case, to the extent required by applicable Laws;
(e) any agreement to do any of the foregoing; or
(f) any event, development, change or effect that has had or would reasonably be expected to have, individually or in the ordinary course of business consistent with past practiceaggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Restructuring Support Agreement (Endologix Inc /De/)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since December 31, 19972012, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company Chyron and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than Chyron Business in the ordinary course of business consistent with past practice; practice and there has not occurred or been (a) any change, event or condition (whether or not covered by insurance) that (i) has resulted in, or could reasonably be expected to result in, a Material Adverse Effect or (hii) that could reasonably be expected to prevent, materially alter or materially delay any of the material transactions contemplated by this Agreement; (b) any entry into acquisition, sale or transfer of any agreement, commitment material asset of Chyron or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business and consistent with past practice; (c) any change in accounting methods or practices (including any change in revenue recognition, depreciation or amortization policies or rates) by Chyron or its Subsidiaries, except as required by U.S. GAAP, or any revaluation by Chyron or its Subsidiaries of any of its assets; (d) any declaration, setting aside, or payment of a dividend or other distribution with respect to the Chyron Common Stock or any direct or indirect redemption, purchase or other acquisition by Chyron of any Chyron Common Stock or any Chyron Preferred Stock; (e) any Chyron Material Contract, other than Chyron Material Contracts (I) entered into prior to the date of this Agreement in the ordinary course of business or (II) entered into on or after the date of this Agreement in compliance with Section 6.1, or (f) any material amendment or termination of, or default under, any Chyron Material Contract to which Chyron or any of its Subsidiaries is a party or by which it is bound other than termination of any Chyron Material Contracts after the date of this Agreement in the ordinary course of business; (g) any amendment or change to the Certificate of Incorporation, as amended, or Bylaws of Chyron; or (h) any increase in or modification of the compensation or benefits payable or to become payable by Chyron or its Subsidiaries to any of their directors or employees.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed reflected in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterMost Recent Unaudited Balance Sheet, since July 31the Most Recent Audited Balance Sheet Date, 1997, there has not been: (i) any change in the assets, liabilities, sales, income, or business of the Company and or in its Subsidiaries relationships with suppliers, customers, or lessors, other than changes that were both in the ordinary course of business or changes that have not suffered any not, individually or in the aggregate, had a Material Adverse Effect on the Company; (ii) any acquisition or disposition by the Company of any changematerial asset or property other than in the ordinary course of business; (iii) any damage, conditiondestruction or loss, event whether or development not covered by insurance, except for any damage, destruction or loss that could reasonably be expected to did not, individually or in the aggregate, have a Material Adverse Effect, Effect on the Company; (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (aiv) any declaration, setting aside or payment of any dividend or any other distribution distributions in respect of any shares of capital stock of the Shares Company; (v) any issuance of any shares of the capital stock of the Company, or options, warrants or other rights to acquire such capital stock, or any repurchasedirect or indirect redemption, redemption purchase, or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of such capital stock or other securities inrights to acquire capital stock, or other ownership interests in, except upon the exercise of Company Stock Options set forth in Section 6.4 of the Company Disclosure Schedule or any of its Subsidiariesissued subsequent to the date hereof, in each case to the extent set forth on the Capitalization Certificate; (bvi) any entry into loss of the services of any employment agreement officers or severance compensation agreement withkey employees or consultants that have had or will have, individually or in the aggregate, a Material Adverse Effect on the Company, or any increase in the rate compensation, pension, or terms (including any acceleration of the right to receive payment), of compensation other benefits payable or to become payable by the Company or to any of its Subsidiaries to, their respective directors, officers or employeeskey employees or consultants, except increases or any bonus payments or arrangements made to employees who are not officers or directors occurring with any of them other than in the ordinary course; (vii) any forgiveness or cancellation of any debt or claim by the Company or any waiver of any right of material value, other than compromises of accounts receivable in the ordinary course of business; (viii) any entry by the Company into any transaction with any of its Affiliates (as defined in Section 17.1), other than any entered into in the ordinary course of business in accordance connection with its customary past practicesthe employment of such Affiliate by the Company; (cix) any increase incurrence or imposition of any material Lien (as defined in the rate or terms (including Section 17.1) on any acceleration of the right to receive payment) material assets, tangible or intangible, of any Plan the Company; or (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (dx) any action discharge or satisfaction by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change material Lien or payment by the Company in accounting methods, principles of any obligation or practices except as required by changes in United States generally accepted accounting principles; liability (ffixed or contingent) any labor dispute, other than routine individual grievances(A) current liabilities included in or reflected on the Most Recent Balance Sheet, or any activity or proceeding by a labor union or representative thereof and (B) current liabilities to organize any employees persons other than Affiliates of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by incurred since the Company or any date of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than the Most Recent Audited Balance Sheet in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicebusiness.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in Since the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure LetterFinancial Statement Date, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been any (a) any Material Adverse Change in the business, operations, properties, assets, condition (financial or otherwise), results, plans, strategies or prospects of the Purchaser; (b) damage, destruction or loss, whether covered by insurance or not, having a cost of $100,000 or more, with regard to the Purchaser's property and business; (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) in respect of the Shares Purchaser's capital stock, Options or any repurchase, securities convertible into or exchangeable for capital stock; (d) redemption or other acquisition of capital stock, Options or securities convertible into or exchangeable for capital stock by the Company Purchaser or any of its Subsidiaries payment of any outstanding shares of capital stock appreciation right or other securities in, or other ownership interests in, the Company or any of its Subsidiariesprofit participation; (be) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable to or to become payable by the Company Purchaser to its officers or employees or any adoption of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) employees or any action by the Company which, if taken after the date hereof, would constitute a breach of any Affiliate of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principlesPurchaser; (f) entry into any labor disputematerial Contract not in the ordinary course of business, other than routine individual grievancesincluding without limitation, any borrowing from any new lender or any activity or proceeding by a labor union or representative thereof to organize any employees in excess of the Company existing credit limits or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employeescapital expenditure; (g) any revaluation change by the Company Purchaser in accounting methods or principles or any of its Subsidiaries write-down, write-up or revaluation of any assets of their respective assets, including write-the Purchaser except depreciation accounted for in the ordinary course of business and write downs of inventory which reflect the lower of cost or market and which are in the ordinary course of accounts receivable business; (h) failure to promptly pay and discharge current liabilities or agree with any party to extend the payment of any current liability; (i) Lien placed on any property of the Purchaser other than Permitted Liens; (j) sale, assignment, transfer, lease, license or otherwise placement of a Lien on any of the Purchaser's tangible assets, except in the ordinary course of business consistent with past practice, or canceled any material debts or Claims; (k) sale, assignment, transfer, lease, license or otherwise placement of a Lien on any Intellectual Property rights or other intangible assets, disclosure of any material confidential information to any Person or abandoned or permitted to lapse any Intellectual Property rights;
(1) commitment to make any charitable contributions or pledges exceeding in the aggregate $25,000; or (hm) any entry into any agreement, commitment whether orally or transaction by in writing, to do any of the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceforegoing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior set forth on Schedule 3.14 hereto or pursuant to the date hereof or in Section 4.04 of the Disclosure Lettertransactions contemplated by this Agreement, since July 31, 1997, (i) the Reference Balance Sheet Date the Company and its Subsidiaries Subsidiary have conducted their businesses only in, and have not suffered engaged in any transaction other than according to, the Ordinary Course of Business, and there has not occurred (i) any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, ; (ii) any damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company and or its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practiceSubsidiary, except in connection with the negotiation and execution and delivery of this Agreement, and whether or not covered by insurance; (iii) there has not been (a) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, shares or property) in respect of the Shares Company’s or any its Subsidiary’s shares (including the Shares) or repurchase, redemption or other acquisition reacquisition of any shares (including the Shares) or other securities of the Company or its Subsidiary, or agreed to do any of the foregoing; (iv) any sale, transfer or other disposition of any of its Personal Property or other assets except (a) assets which are obsolete, and (b) assets sold in the Ordinary Course of Business; (v) any change in the Company’s or Subsidiary’s GAAP, applied on a consistent basis throughout the periods covered thereby, practices or methods; (vi) any issue or sale of any shares, equity interest, bonds or other securities of any type whatsoever of the Company or its Subsidiary, as the case may be; (vii) any capital expenditures which are not set forth in the annual budget or aggregating more than $50,000; (viii) any increase in its indebtedness for borrowed money or any loan or advance made to any Person, or assumed, guaranteed or otherwise become liable with respect to the obligation of any Person other than in the Ordinary Course of Business; (ix) any cancellation of any debts or claims owed to it or amendment, termination or waiver of any rights of material value to the Company or its Subsidiary other than in the Ordinary Course of Business; (x) write down of the value of any Personal Property or other assets owned or used by the Company or its Subsidiary, including inventory and capital lease assets, except on account of depreciation and amortization in the Ordinary Course of Business; (xi) acquisition or sale, assignment, transfer, termination, disposition of or exclusive license from or to any Person, of any Intellectual Property other than in the Ordinary Course of Business; (xii) material write-off as uncollectible of any accounts receivable or any portion thereof; (xiii) any change in any material Tax election or material Tax accounting method, or any settlement or compromise of any material Tax liability or (xiv) any agreement or commitment to take any of its Subsidiaries of any outstanding shares of capital stock the actions referred to in clauses (iii) through (xiv) above. Since the Reference Balance Sheet Date, except as set forth in Schedule 3.14 hereto or other securities inthan in the Ordinary Course of Business, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or there has not been any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to that could become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases Subsidiary to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (cx) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement its Subsidiary or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (gy) any revaluation by Designated Employee of the Company or its Subsidiary, nor has there occurred any amendment of any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company Compensation and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceBenefit Plans.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since January 31, 19971998, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any Material Adverse Change (as defined in SECTION 8.3) with respect to the Company; (b) any damage, destruction or loss, whether covered by insurance or not, having a Material Adverse Effect, with regard to the Company's properties and business; (c) any payment by the Company to, or any notice to or acknowledgment by the Company of any amount due or owing to, the Company's carrier in connection with any liabilities under health insurance covering employees of the Company, in each case, in excess of a reserve therefor on the Balance Sheet; (d) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) in respect of any of the Shares Company's capital stock, or any repurchase, redemption or other acquisition of such capital stock by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its SubsidiariesCompany; (be) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation or in the benefits payable or to become payable by the Company or any of to its Subsidiaries to, their respective directors, officers officers, employees or employeesconsultants; (f) any amendment, except increases modification or termination of any existing, or entering into any new, Contract or plan relating to any salary, bonus, insurance, pension, health or other employee welfare or benefit plan for or with any directors, officers, employees who are or consultants of the Company; (g) any entry into any material Contract not officers or directors occurring in the ordinary course of business in accordance with its customary past practicesbusiness, including without limitation relating to any borrowing or capital expenditure; (ch) any increase in disposition by the rate or terms (including any acceleration of the right to receive payment) Company of any Plan (as hereinafter defined) material asset or any sale, lease, or any other bonus, severance, insurance, pension disposition or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action distribution by the Company which, if taken after the date hereof, would constitute a breach of any of its assets or properties, except transactions in the clauses ordinary and regular course of Section 6.01 hereofbusiness; (ei) any material adverse change in the sales patterns, pricing policies, accounts receivable or accounts payable relating to the Company; (j) any write-down of the value of any inventory having an aggregate value in excess of $5,000, or write-off, as uncollectible, of any notes, trade accounts or other receivables having an aggregate value in excess of $5,000; or (k) any change by the Company in accounting methods, methods or principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or changes made at the request of the Purchaser). There has not been any activity or proceeding by a labor union or representative thereof to organize any employees Material Adverse Change in the working capital of the Company or any Subsidiary, which employees were from the amounts shown on the Company's Balance Sheet and the Company's stockholders' equity shall be not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by less than $100,000 as of the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceClosing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Travel Services International Inc)
Absence of Certain Changes. Except as disclosed Since December 31, 2003, the Company has conducted its business only in the SEC Reports ordinary course and there has not occurred, except as set forth in the Recent Reports:
(as defined in Section 4.05a) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, Any event or development that could reasonably be expected expected, individually or in the aggregate, to have a Material Adverse Effect, Effect on the Company or any of its Subsidiaries;
(iib) Any amendments or changes in the Charter or Bylaws of the Company and its Subsidiaries Subsidiaries;
(c) Any damage, destruction or loss, whether or not covered by insurance, that would, individually or in the aggregate, have conducted their respective businesses only a Material Adverse Effect on the Company and its Subsidiaries;
(d) Any
(i) (A) issuance or sale of any stock, bond or other corporate security or (B) issuance or sale of any securities convertible into or exchangeable for securities of the Company, in each case, other than to directors, employees and consultants pursuant to existing equity compensation or stock purchase plans of the Company in accordance with past business practices; or
(ii) sale, assignment or transfer any of its intangible assets except in the ordinary course consistent of business, or cancellation of any debt or claim except in the ordinary course of business all in accordance with past practicepractices.
(e) Any creation, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been (a) any declaration, setting aside sufferance or payment of any dividend or other distribution in respect of the Shares or any repurchase, redemption or other acquisition assumption by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company Lien on any asset or any making of its Subsidiaries; any loan, advance or capital contribution to or investment in any Person in an aggregate amount which exceeds $25,000 outstanding at any time;
(bf) any Any entry into any employment agreement into, amendment of, relinquishment, termination or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable non-renewal by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assetsmaterial contract, including write-downs of inventory license, lease, transaction, commitment or of accounts receivable other right or obligation, other than in the ordinary course of business consistent business; or
(g) Any transfer or grant of a right with past practice; respect to the patents, patent applications, patent licenses, trademarks, trade names, service marks, trade secrets, copyrights or (h) any entry into any agreement, commitment other intellectual property rights owned or transaction licensed by the Company which is material to or its Subsidiaries, except as among the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceSubsidiaries.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Spectrum Pharmaceuticals Inc)
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 5.10 of the PRI Disclosure LetterSchedule, since July 311, 19972001, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company PRI and its Subsidiaries have conducted their respective businesses only in the ordinary course of business, consistent with past practiceprior practices and, except whether or not in connection with the negotiation and execution and delivery ordinary course of this Agreementbusiness, and (iii) there has not been any Material Adverse Change with respect to PRI. Without limiting the generality of the foregoing, except as set forth in Section 5.10 of the PRI Disclosure Schedule, since July 1, 2001 there has not been:
(a) any amendment to the Organizational Documents of PRI or any Subsidiary;
(b) any material contingent liability incurred by PRI or any of its Subsidiaries as guarantor or otherwise with respect to the obligations of others;
(c) any material Encumbrance placed on any of the properties of PRI or any Subsidiary which remains in existence on the date hereof;
(d) any material obligation or liability incurred by PRI or any of its Subsidiaries other than obligations and liabilities incurred in the ordinary course of business consistent with past practice (none of which is a claim for breach of contract, breach of duty, breach of warranty, tort or infringement of an intellectual property right);
(e) any sale or other disposition, or any agreement or other arrangement for the sale or other disposition, of any material properties or assets of PRI or any of its Subsidiaries other than in the ordinary course of business;
(f) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock of the Shares PRI, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or any PRI of its Subsidiaries of capital stock;
(g) any outstanding shares of capital stock material change in the compensation or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation amounts payable or to become payable by the Company PRI or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than officers except changes in the ordinary course of business consistent with past practicepractices; or (h) any entry into material change in any agreementbonus, commitment pension or transaction by the Company which is material profit sharing payment, entitlement or arrangement made to the Company and its Subsidiaries taken as a whole other than or with any of such officers except changes in the ordinary course of business consistent with past practicepractices; or any grant of any loans or severance or termination pay to such officers; or
(h) any change in the employment status of the executive officers of PRI.
Appears in 1 contract
Absence of Certain Changes. Since the Balance Sheet Date, Company has carried on its business in the ordinary course in accordance with the procedures and practices in effect on the Balance Sheet Date. Except as disclosed set forth in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 Part 2.11 of the Company Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) Balance Sheet Date there has not been with respect to Company any:
(a) any declarationMaterial Adverse Change;
(b) contingent liability incurred as guarantor or surety with respect to the obligations of others;
(c) mortgage, setting aside encumbrance or payment of any dividend or other distribution in respect of the Shares or any repurchase, redemption or other acquisition by the Company or lien placed on any of its Subsidiaries of any outstanding shares of capital stock properties or other securities in, or other ownership interests in, the Company or granted with respect to any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any assets other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; than Permitted Liens;
(d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles obligation or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable liability incurred other than in the ordinary course of business consistent with past practice; , or any borrowing of moneys individually in the amount of $10,000 or in the aggregate in excess of $25,000;
(e) purchase, license, sale or other disposition, or any agreement or other arrangement for the purchase, license, sale or other disposition, of any of the properties or assets of Company other than sales of inventory and purchases of raw materials in the ordinary course of business, consistent with past practice;
(f) damage, destruction or loss, whether or not covered by insurance, affecting the properties, assets or business of Company;
(g) declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the shares of Company other than the Excess Cash Distribution, or any split, stock dividend, combination or recapitalization of the shares of Company or any direct or indirect redemption, purchase or other acquisition by Company of its shares;
(h) labor dispute or claim of unfair labor practices;
(i) change with respect to the officers or management or supervisory employees of Company;
(j) increase in the compensation payable or to become payable to any of Company’s directors or employees;
(k) increase in or modification of any bonus, pension, insurance or other employee benefit plan, or benefits payable to, payment or arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of Company’s employees or directors;
(l) making of any loan, advance or capital contribution to, or investment in, any Person other than loans and advances in an aggregate amount which does not exceed $10,000 outstanding at any time;
(m) entry into into, amendment of, relinquishment, termination or nonrenewal by Company of any agreementcontract, lease transaction, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other right or obligation other than in the ordinary course of business business, consistent with past practice, but in no event involving obligations (contingent or otherwise) of, or payments to Company in excess of $10,000 individually or $25,000 in the aggregate;
(n) payment or discharge of a lien or liability, which lien or liability was not either (i) shown on the balance sheet as of the Balance Sheet Date or (ii) incurred in the ordinary course of business, consistent with past practice after the Balance Sheet Date;
(o) obligation or liability incurred by Company to any of its officers, directors or shareholders;
(p) amendment or change in the articles of incorporation or code of regulations or other charter documents of Company;
(q) deferral of the payment of any accounts payable outside the ordinary course of business or in an amount which is in excess of $10,000 individually or $25,000 in the aggregate or any discount, accommodation or other concession in order to accelerate or induce the collection of any receivable having a detrimental economic effect on the Company in excess of $10,000;
(r) acceleration or release of any vesting condition to the right to exercise any option, warrant or other right to purchase or otherwise acquire any shares of Company, or any acceleration or release of any right to repurchase shares of Company upon the shareholder’s termination of employment or services with Company or pursuant to any right of first refusal;
(s) change in the manner in which Company extends discounts, credits or warranties to customers or otherwise deals with its customers having a detrimental economic effect on the Company in excess of $10,000;
(t) sale, issuance, grant or authorization of the issuance or grant of: (i) any shares or other equity securities of Company; (ii) any option, call, warrant, obligation, subscription, or other right to acquire any shares or other equity securities of Company; or (iii) any instrument convertible into or exchangeable for any shares or other securities of Company;
(u) any agreement or arrangement made by Company to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed set forth in Section 12.8 of the Borrower Disclosure Schedule, since December 31, 2008 ( the “Borrower Balance Sheet Date”) there has not been, occurred or arisen any:
(a) transaction by the Borrower, other than transactions in connection with elimination of inter company accounts, except in the SEC Reports ordinary course of business as conducted on that date and consistent with past practices;
(as defined in Section 4.05b) filed with the SEC prior amendments or changes to the date hereof Certificate of Incorporation or Bylaws of the Borrower (except as contemplated by the Transaction Agreements);
(c) capital expenditure or commitment by the Borrower in any individual amount exceeding $10,000.00 or in Section 4.04 the aggregate, exceeding $50,000.00;
(d) destruction of, damage to, or loss of any assets (including, without limitation, intangible assets), business or customer of the Disclosure Letter, since July 31, 1997, Borrower (iwhether or not covered by insurance) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have which would constitute a Material Adverse Effect;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals) by the Borrower;
(iig) revaluation by the Company and Borrower of any of its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and assets;
(iiih) there has not been (a) any declaration, setting aside aside, or payment of any a dividend or other distribution in respect to the capital stock of the Shares Borrower, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or Borrower of any of its Subsidiaries capital stock, except repurchases of any outstanding shares the Borrower Common Stock from terminated Borrower employees or consultants at the original per share purchase price of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; such shares;
(bi) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate salary or terms (including any acceleration of the right to receive payment), of other compensation payable or to become payable by the Company or Borrower to any of its Subsidiaries toofficers, their respective directors, officers employees or employeesconsultants of the Borrower, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; , or (h) any entry into any agreementthe declaration, payment, or commitment or transaction obligation of any kind for the payment by the Company which is material Borrower of a bonus or other additional salary or compensation to the Company and its Subsidiaries taken any such person except as a whole otherwise contemplated by this Agreement, or other than as set forth in Section 12.16 below, the establishment of any bonus, insurance, deferred compensation, pension, retirement, profit sharing, stock option (including without limitation, the granting of stock options, stock appreciation rights, performance awards), stock purchase or other employee benefit plan;
(j) sale, lease, license or other disposition of any of the assets or properties of the Borrower, except in the ordinary course of business and not in excess of $10,000.00, in the aggregate;
(k) termination or material amendment of any material contract, agreement or license (including any distribution agreement) to which the Borrower is a party or by which it is bound;
(l) loan by the Borrower to any person or entity, or guaranty by the Borrower of any loan, except for (i) travel or similar advances made to employees in connection with their employment duties in the ordinary course of business, consistent with past practice and (ii) trade payables not in excess of $50,000.00 in the aggregate and in the ordinary course of business, consistent with past practice;
(m) waiver or release of any right or claim of the Borrower, except for inter company balances and doubtful allowances, including any write-off or other compromise of any account receivable of the Borrower in excess of $50,000.00 in the aggregate;
(n) commencement or notice or threat of commencement of any lawsuit or proceeding against or, to the Borrower’s or the Borrower’s officers’ or directors’ knowledge, investigation of the Borrower or its affairs;
(o) to Borrower’s knowledge, notice of any claim of ownership by a third party of the Borrower’s Intellectual Property (as defined in Section 12.13 below) or, to the Borrower’s knowledge, of infringement by the Borrower of any third party’s Intellectual Property rights;
(p) issuance or sale by the Borrower of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, other than as contemplated by the Transaction Agreements;
(q) material changes in pricing or royalties set or charged by the Borrower to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Borrower;
(r) to Borrower’s knowledge, any event or condition of any character that has or could reasonably be expected to have a Material Adverse Effect on the Borrower; or
(s) agreement by the Borrower, or any of its officers or employees on its behalf to do any of the things described in the preceding clauses (a) through (r) (other than negotiations with Lender and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 of the Disclosure Letter, since July Since December 31, 19972001, (i) the Company each of Seller -------------------------- and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and has operated its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) since such date there has not been (a) any declaration, setting aside or payment of any dividend or other distribution in with respect of the Shares or any repurchase, redemption or other acquisition by the Company to Seller or any of its Subsidiaries of any outstanding shares of capital stock any:
(a) Material Adverse Change in the Assets or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; Business;
(b) incurrence, creation or assumption of (i) any entry into Encumbrance on any employment agreement or severance compensation agreement withof the Assets, (ii) any Liability for borrowed money, or (iii) any increase in Liability as a guarantor or surety with respect to the rate or terms (including any acceleration obligations of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; others;
(c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonuspurchase, severancelicense, insurancesale, pension assignment or other employee benefit plandisposition or transfer, payment or agreement or other arrangement made tofor the purchase, for license, sale, assignment or with any such directorsother disposition or transfer, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable Assets other than in the ordinary course of business consistent with past practice; ;
(d) damage, destruction or loss of any Asset, whether or not covered by insurance;
(he) declaration, setting aside or payment of any entry into dividend on, or making of any agreementother distribution in respect of, commitment its capital stock;
(f) change in the compensation payable or transaction by the Company which is material to the Company and become payable to any of its Subsidiaries taken as a whole officers, directors or employees, or in any bonus, pension, severance, retention, insurance or other than benefit payment or arrangement made to or with any of such officers, directors or employees, except changes in the ordinary course of business consistent with past practice;
(g) amendment of, relinquishment or termination by it of any contract, agreement, arrangement, commitment or undertaking relating to the employment of any officer, employee, contractor or consultant of Seller or any of its Subsidiaries or any other type of contract, agreement, arrangement, commitment or undertaking with any officer, employee, contractor or consultant of Seller or any of its Subsidiaries;
(h) amendment of, relinquishment, termination or nonrenewal by it of any Assigned Agreement or a right or obligation set forth in any Assigned Agreement;
(i) written or, to the Knowledge of Seller and its Subsidiaries, oral indication or assertion by the other party thereto of any material problems with Seller's or any of its Subsidiaries' services or performance under any Assigned Agreement or such other party's desire to so amend, relinquish, terminate or not renew any Assigned Agreement (or a right or obligation set forth therein);
(j) license, transfer or grant of a right under any Seller IP Rights (as defined in Section 5.13(a)); or
(k) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by it or any material revaluation by it of any of the Assets.
Appears in 1 contract
Absence of Certain Changes. Except for the pre-closing transfer -------------------------------- of assets as disclosed in the SEC Reports (as defined more particularly described in Section 4.05) filed with 1.01 hereof and except as and to the SEC prior to extent set forth in Schedule 4.10 attached hereto, from November 30, 1998 through the date hereof or in Section 4.04 and through the Closing Date the operations of the Disclosure Letter, since July 31, 1997, (i) the Company and its Subsidiaries Automotive Filter Business have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have been conducted their respective businesses only in the ordinary course consistent with past practice, except in connection practice and no Automotive Filter Company (nor the Seller with respect to the negotiation and execution and delivery of this Agreement, and (iiiAutomotive Filter Business) there has not been or will have: (a) amended its Incorporation Documents or its By-Laws; or (b) merged with or into or consolidated with any declarationother person, setting aside or payment of any dividend firm, corporation or other distribution in respect entity; or (c) subdivided or reclassified any shares of the Shares its capital stock; (d) issued, sold, purchased or redeemd or issued options or rights to subscribe to, or entered into any contracts or commitments to issue, sell, purchase or redeem any shares of its capital stock or other equity interests or any repurchase, redemption securities convertible into or other acquisition by the Company or exchangeable for any of its Subsidiaries of any outstanding shares of capital stock or other securities in, equity interests; (e) declared or paid any dividends or declared or made any distributions of any kind (other than cash distributions) to its stockholders or other ownership interests in, the Company or owners of any of its Subsidiariesoutstanding equity interests or made any direct or indirect redemption, retirement, purchase or other acquisition of any shares of its capital stock or other equity interests except for cash receipts remitted to the Seller in connection with the ordinary cash management practices of the Seller or acquired any equity securities or options or rights to acquire equity securities of any person; (bf) entered into or amended any entry into any written employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach employee of any of the clauses of Section 6.01 hereofAutomotive Filter Companies; (e) entered into or amended any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) agreement with any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof association representing any employee or entered into or amended in any material respect, any employee benefit plan or arrangement relating to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practice.Automotive Filter Companies;
Appears in 1 contract
Absence of Certain Changes. Except as disclosed in the SEC Reports (as defined set forth in Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 4.9 of the Disclosure LetterSchedule, since July 31the Balance Sheet Date, 1997, (i) Geosolutions has conducted the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only Business in the ordinary course consistent with past practice, except in connection with the negotiation practice and execution and delivery of this Agreement, and (iii) there has not been (a) a Material Adverse Change, (b) any declaration, setting aside or payment of any non-cash dividend or other non-cash distribution in with respect to any of the Shares or Geosolutions’ capital stock, any repurchase, redemption purchase or other acquisition by the Company or Geosolutions of any of its Subsidiaries of any outstanding shares of capital stock or other securities inany conversion of Geosolutions’ outstanding capital stock, (c) (i) any granting by Geosolutions to any executive officer or other ownership interests in, the Company or any key employee of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or Geosolutions of any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employeescompensation, except for normal increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; practice or as required under employment agreements in effect as of the date hereof as described in Section 4.9 of the Disclosure Schedule, (hii) any granting by Geosolutions to any such executive officer or other key employee of Geosolutions of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the date hereof as described in Section 4.9 of the Disclosure Schedule, (iii) any entry by Geosolutions into any agreementemployment, commitment severance or transaction termination agreement with any such executive officer or other key employee of Geosolutions, except as described in Section 4.9 of the Disclosure Schedule, (d) any damage, destruction or loss to property of Geosolutions, whether or not covered by the Company which insurance, that is material to the Company and its Subsidiaries taken as Material, (e) any sale, lease, transfer, or assignment of any assets, tangible or intangible of Geosolutions, having a whole book value greater than $100,000, other than sales of inventory in the ordinary course of business consistent business, (f) any imposition of any Lien upon any of the assets, tangible or intangible, of Geosolutions, other than Permitted Liens, (g) any transfer, assignment or grant of any license or sublicense by Geosolutions of any Material rights under or with past practicerespect to any Intellectual Property, (h) any change made or authorized in the certificate of incorporation or bylaws of Geosolutions, (i) any issuance, sale or other disposition of any of capital stock of or other equity interests in Geosolutions or the granting of any option, warrant, or other right to purchase or obtain (including upon conversion, exchange or exercise) any of the capital stock of or other equity interests in Geosolutions, (j) any adoption, amendment, modification, increase in the payments under or termination of any bonus, profit sharing, incentive, deferred compensation, savings, insurance, pension, retirement, severance, or other plan, Contract, or commitment for the benefit of any of the directors, officers, managers or employees of Geosolutions (or any such action with respect to any other Geosolutions Plan), (k) any other Material change in employment terms for any of directors, officers, managers or employees of Geosolutions, (l) any revaluation of any of the assets of Geosolutions or any change in any of their accounting methods, classifications, principles or practices, (m) other than as required by applicable Legal Requirements, the taking of any position by Geosolutions on any Tax Return that would have the effect of increasing the Tax liability of Geosolutions or decreasing any Tax attribute of Geosolutions, or (n) any commitment by Geosolutions to any of the foregoing.
Appears in 1 contract
Absence of Certain Changes. Except as disclosed From June 30, 2007 through the date hereof, the Company and each of its Subsidiaries have conducted their business in the SEC Reports (ordinary course of such business consistent with past practices, except as defined contemplated by this Agreement in Section 4.05) filed connection with the SEC prior to Merger and the transactions contemplated thereby. From June 30, 2007 through the date hereof hereof, neither the Company nor any of its Subsidiaries has engaged in any transaction or in Section 4.04 series of the Disclosure Letter, since July 31, 1997, (i) transactions material to the Company and its Subsidiaries have not suffered any Material Adverse Effect or any changein the aggregate, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only other than in the ordinary course of business consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has have not been (a) any Company Effects that constitute a Company Material Adverse Effect; (b) except as set forth in Section 5.8 of the Company Disclosure Letter, any declaration, setting aside or payment of any dividend or other distribution in respect of the Shares capital stock of the Company; (c) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock; (d) any repurchase, redemption or any other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities inof, or other ownership interests in, the Company or any of its Subsidiaries; (be) any material change in accounting principles, practices or methods; (f) except as set forth in Section 5.8 of the Company Disclosure Letter, any entry into any employment agreement or severance compensation agreement with, or any material increase in the rate or terms (including including, without limitation, any acceleration of the right to receive payment), ) of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers directors or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practicesofficers; (cg) except as set forth in Section 5.8 of the Company Disclosure Letter, any material increase in the rate or terms (including including, without limitation, any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment plan or arrangement made to, for or with covering any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (gh) any revaluation by the Company or any of its Subsidiaries of any material amount of their respective assets, including taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practicepractices; (i) except as set forth in Section 5.8 of the Company Disclosure Letter, any sale or other transfer of any material assets of the Company or any of its Subsidiaries; (hj) any entry into action of the type described in Section 7.1(a) or Section 7.1(b) that had such Section been in effect when such action was taken would be in violation of such Section; and (k) any agreement, commitment or transaction agreement by the Company which is material to the Company and or its Subsidiaries taken as a whole other than to take any of the actions referred to in the ordinary course clauses (b) through (i) of business consistent with past practicethis sentence.
Appears in 1 contract
Sources: Merger Agreement (United Online Inc)
Absence of Certain Changes. Except Since the Balance Sheet Date, except -------------------------- as disclosed set forth in Schedule 2.10, there has not been with respect to Media ------------- Resolutions:
(a) any change in the SEC Reports (as defined in Section 4.05) filed with the SEC prior to the date hereof financial condition, properties, assets, liabilities business, results of operations or prospects of Media Resolutions, which change by itself or in Section 4.04 conjunction with all other such changes, whether or not arising in the ordinary course of the Disclosure Letterbusiness, since July 31, 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect has had or any change, condition, event or development that could can reasonably be expected to have a Material Adverse Effectmaterial adverse effect on Media Resolutions;
(b) any contingent liability incurred by Media Resolutions as guarantor or surety with respect to the obligations of others;
(c) any material mortgage, encumbrance or lien placed on any of the properties of Media Resolutions;
(iid) the Company and its Subsidiaries have conducted their respective businesses only any material obligation or liability incurred by Media Resolutions other than in the ordinary course consistent with past practiceof business;
(e) any purchase or sale or other disposition, except or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets of Media Resolutions other than in connection with the negotiation ordinary course of business;
(f) any damage, destruction or loss, whether or not covered by insurance, materially and execution and delivery adversely affecting the properties, assets or business of this Agreement, and Media Resolutions;
(iii) there has not been (ag) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock of Media Resolutions, any split, stock dividend, combination or recapitalization of the Shares capital stock of Media Resolutions or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by Media Resolutions of the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities in, or other ownership interests in, the Company or any of its Subsidiaries; Media Resolutions;
(bh) any entry into material labor dispute or claim of material unfair labor practices, any employment agreement or severance compensation agreement with, or any increase change in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company to any of Media Resolutions' officers, employees or agents earning compensation at an anticipated annual rate in excess of $1,000, or any bonus payment or arrangement made to or with any of its Subsidiaries tosuch officers, their respective directorsemployees or agents; or any change in the compensation payable or to become payable to any of Media Resolutions' other officers, officers employees or employeesagents other than normal annual compensation increases in accordance with past practices or any bonus payment or arrangement made to or with any of such other officers, except increases employees or agents other than normal bonuses or other arrangements made in accordance with past practices;
(i) any material change with respect to employees who are the management, supervisory, development or other key personnel of Media Resolutions (the management, supervisory, development and other key personnel of Media Resolutions being listed on Schedule 2.10(i)); -----------------
(j) any payment or discharge of a material lien or liability thereof, which lien or liability was not officers either (i) shown on the balance sheet as of the Balance Sheet Date included in Media Resolutions Interim Financial Statements or directors occurring (ii) incurred in the ordinary course of business in accordance with its customary past practicesafter the Balance Sheet Date; or
(ck) any increase in the rate obligation, or terms (including any acceleration of the right material liability incurred by Media Resolutions to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methodsits officers, principles directors or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than routine individual grievancesshareholders, or any activity loans or proceeding by a labor union or representative thereof advances made to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assetsofficers, including write-downs of inventory directors, shareholders or of accounts receivable other than in the ordinary course of business consistent with past practice; or (h) any entry into any agreement, commitment or transaction by the Company which is material affiliate except normal compensation and expense allowances payable to the Company and its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practiceofficers.
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Absence of Certain Changes. Except as disclosed in the SEC Reports contemplated by this Agreement (including those matters contemplated by Section 5.2 of this Agreement or listed on Schedule 5.2) and except as defined in set forth on Section 4.05) filed with the SEC prior to the date hereof or in Section 4.04 2.5 of the Disclosure LetterSchedule, since July 31the Balance Sheet Date, 1997, (i) the Company and its Subsidiaries there have not suffered been any Material Adverse Effect adverse changes in the financial condition or results of operations of the Company, except for any change, condition, event or development adverse changes that could would not reasonably be expected to have result in a Company Material Adverse Effect. Except as contemplated by this Agreement (including those matters contemplated by Section 5.2 of this Agreement or listed on Schedule 5.2), (ii) and except as set forth on Section 2.5 of the Disclosure Schedule, since the Balance Sheet Date, the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and execution and delivery of this Agreement, and (iii) there has not been taken any of the following actions:
(a) suffered any declarationmaterial damage, setting aside or payment of any dividend destruction or other distribution in respect casualty loss (whether or not covered by insurance or reinsurance) affecting the Business, property or assets of the Shares 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 in, or other ownership interests in, the Company or any of its Subsidiaries; Company;
(b) sold, assigned or transferred any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration assets of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any other bonus, severance, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles a single transaction or practices except as required by changes series of related transactions in United States generally accepted accounting principles; (f) any labor disputean amount in excess of $50,000, other than routine individual grievances, sales of products or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (g) any revaluation by the Company or any of its Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than services made in the ordinary course of business consistent with past practice; practices;
(c) changed the Company’s authorized or issued capital stock, or issued any securities convertible or exercisable into or exchangeable for any capital stock, or any warrants, options or other rights to acquire any capital stock;
(hd) declared or paid any entry into dividends or made any agreement, commitment or transaction by distributions on the capital stock of the Company which is material to or redeemed or purchased any shares of capital stock or other equity securities of the Company and its Subsidiaries taken as a whole (other than the making of payments to holders of Options pursuant to Section 1.2 that are fully funded by Seller) or made any payments, other than payments set forth on Section 2.5(d) of the Disclosure Schedule, from the Company to Seller or any of its affiliates of any kind, including without limitation any payments to reduce the Designated Intercompany Accounts Amount;
(e) incurred any indebtedness for borrowed money, other than borrowings from Seller;
(f) made any loans or advances to, or guarantees for the benefit of, any person (other than advances to employees for travel and business expenses incurred in the ordinary course of business consistent with past practicepractices which do not exceed $10,000 in the aggregate);
(g) except as required by law, granted any rights to severance benefits, “stay pay” or termination pay to any director, officer or other employee of the Company (other than under agreements, if any, for which Buyer will not be obligated following the Closing) or increased benefits payable or potentially payable to any such director, officer or other employee of the Company under any previously existing severance benefits, “stay-pay” or termination pay arrangements (in each case, other than grants or increases that are substantially consistent with the past practices of the Company, as applicable, or grants or increases for which Buyer will not be obligated following the Closing);
(h) except in the ordinary course of business consistent with past practices, made any capital expenditures or commitments therefor with respect to the Company in an amount in excess of $100,000 in the aggregate;
(i) acquired any entity or business (whether by the acquisition of stock, the acquisition of assets, merger or otherwise);
(j) amended the certificate of incorporation or by-laws of the Company;
(k) made any material changes to any insurance coverage or policies applicable to the Company or the Business;
(l) amended the terms of any existing Company Benefit Plan, except (i) as required by law or (ii) in a manner substantially consistent with the past practices of the Business;
(m) materially changed the accounting principles, methods or practices of the Company, except in each case to conform to changes in GAAP;
(n) failed to timely pay when due, settled, or compromised any material Tax liability; failed to file any material Tax Return when due; or filed or amended any material Tax election other than in the ordinary course of business;
(o) waived amounts owed to the Company by Seller or any of its subsidiaries or any of their respective affiliates (other than as contemplated by Section 1.5(b)); or
(p) entered into any agreement or commitment to take any of the actions set forth in paragraphs (a) through (o) of this Section 2.5.
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Sources: Stock Purchase and Sale Agreement (Microstrategy Inc)