Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been: (a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target; (b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target. (c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date; (d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement; (e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement; (f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance; (g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock; (h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees; (i) any material change with respect to the officers of Target; (j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter; (k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees; (l) any change in accounting methods or practices of Target; (m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or (n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) above.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly contemplated by this Agreement or as set forth in Section 3.9 of on Schedule 4.9, since the Target Disclosure Schedule, Balance Sheet Date:
(i) there has not been:
(a) been any material adverse change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta material adverse change;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Purchaser having a replacement cost of more than $25,000 for any single loss or $100,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Purchaser or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Purchaser of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Purchaser;
(hiv) the Purchaser has not awarded or paid any material labor trouble bonuses to employees of the Purchaser with respect to the fiscal year ended July 31, 2012, except to the extent accrued on the Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Purchaser's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Purchaser);
(kv) there has not been any obligation change by the Purchaser in accounting or liability incurred by Target to any of its officersTax reporting principles, directors, shareholders methods or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeespolicies;
(lvi) any change in accounting methods or practices of Target;
(m) any other material transaction the Purchaser has not entered into by Target any transaction or Contract or conducted its business other than transactions in the ordinary course consistent with past practice; Share Exchange Agreement (vii) the Purchaser has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) above.Seller;
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date:
(a) there has not been any damage, 2006 Target destruction or loss, whether or not covered by insurance, with respect to the property and assets of Seller;
(b) Seller has not made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of Seller, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of Seller other than officers or senior managers;
(c) Seller has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(d) there has not been any change by Seller in accounting or Tax reporting principles, methods or policies;
(e) Seller has not conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bf) Seller has not entered into (1) any material contingent liability incurred by Target as guarantor Contract that is not an Included Contract or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c2) any other material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Datetransaction;
(dg) Seller has not hired any material obligation employees or liability engaged independent contractors;
(h) Seller has not materially breached any Included Contract or materially amended any Included Contract;
(i) Seller has not failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(j) Seller has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any natureassets of Seller except for assets acquired or sold, whether accruedassigned, absolutetransferred, contingent conveyed, leased or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred otherwise disposed of in the ordinary course of business and not prohibited by the terms of this Agreementconsistent with past practice;
(ek) Seller has not discharged or satisfied any purchase, sale or other dispositionLien, or paid any agreement obligation or other arrangement for the purchaseLiability, sale or other disposition, of any of the material properties or assets of Target other than except in the ordinary course of business or as contemplated by this Agreementconsistent with past practice and which, in the aggregate, are not material to Seller;
(fl) Seller has not canceled or compromised any material damagedebt or claim or amended, destruction canceled, terminated, relinquished, waived or loss of Target properties released any Contract or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred right except in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target consistent with past practice and which, in the aggregate, are not material to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Targetthe Company;
(m) Seller has not made or committed to make any other material transaction entered into by Target other than transactions in the ordinary course of business; orcapital expenditures or capital additions or improvements;
(n) Seller has not entered into any agreement or understanding whether in writing or otherwise, for Target to take prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the sales of its services for periods prior to any Closing hereunder;
(o) Seller has not amended any of its Organizational Documents;
(p) Seller has not issued any equity securities or any securities exercisable or exchangeable for or convertible into equity securities of Seller;
(q) Seller has not declared or made any dividend or distribution, in cash or in kind, or repurchased any of its equity securities; and
(r) Seller has not entered into any agreements to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.8 which have not been consummated as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (XTL Biopharmaceuticals LTD)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement, since the Balance Sheet Date:
(i) there has not been any material adverse change nor has there occurred any event which is reasonably likely to result in a material adverse change;
(fii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Purchaser having a replacement cost of more than $25,000 for any single loss or $100,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Purchaser or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Purchaser of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Purchaser;
(hiv) the Purchaser has not awarded or paid any material labor trouble bonuses to employees of the Purchaser or material claim of unfair labor practices involving Target; any material change in agreed to increase the compensation payable or to become payable by Target it to any of its officers the Purchaser's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Purchaser);
(kv) there has not been any obligation change by the Purchaser in accounting or liability incurred by Target Tax reporting principles, methods or policies;
(vi) the Purchaser has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Purchaser has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
(viii) the Purchaser has not mortgaged, pledged or subjected to any Lien, any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Purchaser, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nix) the Purchaser has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Purchaser;
(x) the Purchaser has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Purchaser;
(xi) the Purchaser has not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $100,000 in the actions specified aggregate;
(xii) the Purchaser has not instituted or settled any material legal proceeding; and
(xiii) the Purchaser has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.9.
Appears in 1 contract
Sources: Share Exchange Agreement (Golden Key International Inc)
Absence of Certain Developments. Since December 31the Most Recent Balance Sheet Date, 2006 Target the Business has been conducted its business only in the ordinary course consistent with past practice Ordinary Course of Business and, except as otherwise set forth in Section 3.9 of for the Target Disclosure Schedule, there has not beenmatters disclosed on Schedule 3.6:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetno Seller has amended its Organizational Documents;
(b) no Seller has permitted any material contingent liability incurred by Target as guarantor or otherwise with respect of the Acquired Assets to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.become subject to an Encumbrance other than a Permitted Encumbrance;
(c) there has been no (i) material loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting the Purchased Business or any material mortgageAcquired Asset or (ii) shutdown or maintenance of any Facility, encumbrance converting equipment, foam extruding or lien placed on any foam forming equipment outside of the properties Ordinary Course of Target which remains in existence on the date hereof or will remain on the Closing DateBusiness;
(d) any material obligation no Seller has increased the Compensation payable or liability of any naturepaid, whether accrued, absolute, contingent conditionally or otherwise, asserted or unassertedto any Offer Employee, incurred by Target other than obligations and liabilities incurred in the ordinary course Ordinary Course of business Business and not prohibited by other than any Compensation paid to a stockholder of any of the terms of this AgreementSellers;
(e) no Seller has (i) made any purchase, sale material change in its methods of accounting or other disposition, accounting practices (including with respect to reserves) except as required by GAAP or any agreement (ii) materially changed its policies or other arrangement for the purchase, sale practices with respect to paying payables or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreementbilling and collecting receivables;
(f) no Seller has terminated or closed any material damage, destruction Facility or loss of Target properties or assets, whether or not covered by insurancebusiness included within the Purchased Business;
(g) no Seller has written up or written down any declarationAcquired Asset which is material to the Business, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of revalued its own capital stockinventory;
(h) no Seller has entered into any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or Contractual Obligation to become payable by Target to do any of its officers or employees other than normal merit increases the things referred to elsewhere in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;this Section 3.6; and
(i) any material change with respect to the officers of Target;
(j) any payment no event or discharge of circumstance has occurred which has had a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) aboveMaterial Adverse Effect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cellu Tissue Holdings, Inc.)
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement or as set forth on Schedule 4.7, 2006 Target since the Purchaser Balance Sheet Date (i) Purchaser has conducted its business operations in all material respects only in the ordinary course consistent with past practice and, except Ordinary Course of Business and in substantially the same manner as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, previously conducted and (ii) there has not beenbeen any event, change, occurrence or circumstance that has had or could reasonably be expected to have a Material Adverse Effect on Purchaser. Without limiting the generality of the foregoing, since the Purchaser Balance Sheet Date:
(a) Purchaser has not entered into any material change transaction or Contract or conducted its business other than in the financial condition, properties, assets, liabilities, business or operations Ordinary Course of TargetBusiness;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing toPurchaser has not sold, leased, transferred, pledged, or waiver assigned any of any material right of, Target.its assets other than inventory in the Ordinary Course of Business;
(c) no Person (including Purchaser) has accelerated, terminated, modified, or canceled any material mortgage, encumbrance Contract (or lien placed on any series of related Contracts) relating to the properties of Target which remains in existence on the date hereof or will remain on the Closing DatePurchaser involving more than $25,000;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and there has not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the assets of Purchaser;
(e) Purchaser has not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $50,000 in the aggregate;
(f) Purchaser has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person;
(g) Purchaser has not issued, created, incurred, assumed, or guaranteed any Indebtedness in an amount exceeding $50,000 in the aggregate;
(h) Purchaser has not instituted or settled any Legal Proceeding;
(i) Purchaser has not failed to promptly pay and discharge current liabilities in the Ordinary Course of Business consistent with past practices, except for liabilities not material in amount that are disputed in good faith by appropriate proceedings; 35
(j) Purchaser has not mortgaged, pledged or subjected to any Lien (other than Permitted Liens) any of its assets;
(k) there has not been any declaration, setting aside aide or any payment of any dividend by Target dividends, or the making of any other distribution distributions in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving TargetPurchaser; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;and
(l) any change in accounting methods or practices of Target;
(m) any other material transaction Purchaser has not entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement legal obligation, whether written or understanding whether in writing or otherwiseoral, for Target to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Sources: Purchase Agreement (Hei Inc)
Absence of Certain Developments. Since December 31Except for the transactions contemplated by this Agreement, 2006 Target has conducted its business only in the ordinary course consistent with past practice and(i) since January 1, 2020, (1) except as otherwise set forth in Section 3.9 of required by Law (including any COVID-19 Measures), the Target Disclosure Schedule, there has not been:
(a) any material change in Company and the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred Business have operated in the ordinary course of business consistent, in all material respects, with past practice and (2) there has not prohibited been any Material Adverse Effect; and (ii) since the Balance Sheet Date:
(a) none of the assets or properties (including Intellectual Property Rights) of the Company or the Business have been sold, assigned, licensed or otherwise transferred or conveyed (except for (i) de minimis assets (excluding Intellectual Property Rights) or (ii) non-exclusive grants to customers to access or license the Company’s Software, in each case, in the ordinary course of business);
(b) no Contract or other agreement (or series of related agreements) to which the Company is a party or by which the Company or the Business is subject has been entered into, accelerated terminated, amended, supplemented or materially modified that either involves an amount more than $50,000 in any calendar year or occurred outside the ordinary course of business;
(c) none of the assets or properties of the Company or the Business (including Intellectual Property Rights) has suffered or become subject to any Encumbrance (except Permitted Encumbrances);
(d) neither Seller nor any Affiliate of Seller (including the Company) has entered into, renewed, renegotiated, modified the terms of this Agreementor terminated any employment agreement or collective bargaining agreement or any similar agreement with a Union to which the Company is a party or by which the Company or the Business is subject;
(e) no sales revenues of the Company or the Business have been recorded pursuant to transactions in which the purchaser of such products has the right to return such products or services, including software-as-a-service, at a future date or has the right to elect early termination of such services and receive a refund of service fees paid, as applicable;
(f) neither Seller nor any purchaseAffiliate of Seller (including the Company) has (i) failed to pay and discharge any current liabilities of the Company or the Business in the ordinary course of business, sale except where disputed in good faith by appropriate proceedings and for which adequate reserves have been taken in Estimated Working Capital, (ii) accelerated or delayed collection of accounts receivable of the Company or the Business in advance of or beyond the dates when the same would have been collected in the ordinary course of business or (iii) offered any customer of the Company or the Business a discount or other dispositioninducement to accelerate ▇▇▇▇▇▇▇▇ and collections, other than discounts offered in the ordinary course of business;
(g) neither Seller nor any Affiliate of Seller (including the Company) has, in respect of the Company or the Business, (i) made any agreement material change in the terms or other arrangement manner of licensing or distribution of products or services, (ii) made any material change to its pricing, discount, allowance or return policies, (iii) granted any material pricing, discount, allowance or return terms for any customer or vendor or (iv) decreased the purchaseamount of any subscription and support renewal fees due to the Company from the amount of such subscription and support renewal fee payable to the Business during the preceding twelve-month period, sale except, in the case of clause (iii) and clause (iv), in the ordinary course of business;
(h) neither Seller nor any Affiliate of Seller (including the Company) has, in respect of the Company or other dispositionthe Business, (i) increased the compensation of any of the material properties directors, officers, employees or assets other service providers of Target the Company or the Business or made any other change in employment or service terms of such Person, other than in the ordinary course of business, (ii) entered into, amended or modified any deferred compensation, severance, settlement, release, conciliation or similar agreement or (iii) made any loan to, or entered into any other transaction with, any of its Affiliates, directors, officers, employees or other service providers outside the ordinary course of business and inconsistent with past practice;
(i) neither Seller nor any Affiliate of Seller (including the Company) has, in respect of the Company or the Business, other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) adopted, entered into, amended, terminated or materially modified any material change with respect employee benefit plan, program or arrangement or (ii) otherwise increased (or otherwise agreed to increase) the officers benefits provided to any directors, officers, employees or other services providers of Targetthe Company or the Business;
(j) neither Seller nor any payment Affiliate of Seller (including the Company) has made, changed or discharge otherwise modified any Tax election affecting the Company, adopted or changed any accounting method affecting the Company, amended any Tax Return affecting the Company, entered into any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, non-U.S. or other law) affecting the Company, entered into any Tax sharing, Tax indemnity, Tax allocation or similar agreement or Contract affecting the Company, settled any Tax claim or assessment affecting the Company, surrendered any right to claim a material lien refund or credit of Taxes affecting the Company, incurred any liability of Target which was not shown on the Most Recent Balance Sheet or incurred in for Taxes outside the ordinary course of business thereafterconsistent with past practice affecting the Company, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment affecting the Company;
(k) neither Seller nor any obligation or liability incurred by Target Affiliate of Seller (including the Company) has taken any action that, if taken after the date hereof, would require Buyer’s consent pursuant to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;Section 5.1; or
(l) neither Seller nor any change Affiliate of Seller (including the Company) has, in accounting methods respect of the Company or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwiseBusiness, for Target committed to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 3.7 of the Target Disclosure ScheduleSchedule (arranged in subsections corresponding to the subsections set forth below), there since December 31, 2015, Seller has not been:
(a) any material change in the financial condition, properties, assets, liabilities, conducted its business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreementconsistent with past custom and practice and:
(a) there has not been any Company Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Company Material Adverse Change;
(fb) Seller has not made any material declaration or payment of any dividends or distributions on or in respect of any equity security of Seller, or redemption, purchase or acquisition of any equity security of Seller, or made any other payment to or on behalf of either Shareholder or any Affiliate thereof;
(c) there has not been any split, combination or reclassification of any equity security of Seller;
(d) there has not been any damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers property and assets of TargetSeller having a replacement cost of more than $50,000 for any single loss or $100,000 in the aggregate for any related losses;
(je) Seller has not made any payment change in the rate of compensation, commission, bonus or discharge other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of a material lien any manager, director, officer, employee, distributor or liability agent of Target which was not shown on the Most Recent Balance Sheet or incurred Seller, other than increases in the ordinary course of business thereafterconsistent with past custom and practice in the base wages or salaries of employees of Seller other than officers or senior managers;
(f) Seller has not entered into or amended any employment, deferred compensation, severance or similar agreement;
(g) Seller has not entered into any collective bargaining agreement or relationship with any labor organization;
(h) there has not been any material change by Seller in accounting or Tax reporting principles, methods or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any material Tax election made by or with respect to Seller;
(i) except for the transactions contemplated by this Agreement, Seller has not entered into or amended any other transaction or Contract other than in the ordinary course of business consistent with past custom and practice;
(j) Seller has not hired employees or engaged independent contractors other than in the ordinary course of business consistent with, and at a level consistent with, past custom and practice;
(k) Seller has not breached any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including Contract in any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesrespect;
(l) Seller has not made any change in accounting methods loans, advances or practices of Targetcapital contributions to, or investments in, any Person;
(m) Seller has not mortgaged, pledged or subjected to any other material transaction entered into by Target Lien (other than transactions Permitted Liens) any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business; orbusiness consistent with past custom and practice;
(n) Seller has not canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past custom and practice and which, in the aggregate, are not material to Seller taken as a whole;
(o) Seller has not entered into or otherwise, for Target to take amended any Contract or transaction with any of its Affiliates or paid any fees, expenses or other amounts to any Affiliate of Seller;
(p) Seller has not made or committed to make any capital expenditures or capital additions or improvements (i) in excess of $25,000 individually or $50,000 in the aggregate, or (ii) outside the ordinary course of business consistent with past custom and practice;
(q) Seller has not entered into any prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing outside of the ordinary course of business consistent with past custom and practice;
(r) Seller has not changed any of its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(s) Seller has not amended any of its Governing Documents;
(t) Seller has not adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against Seller under any similar Law or other agreement with respect to the sale of Seller’s assets, securities or Business;
(u) Seller has not issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of Seller, or incurred any Indebtedness (other than in the ordinary course of business consistent with past practices);
(v) Seller has not (i) discharged, repaid, amended, modified, made payment on, canceled or compromised any Indebtedness, or discharged or satisfied any Lien, or (ii) engaged in any transaction or provided any consideration relating to the release, modification or diminution of any guarantee, bond, surety or other obligation of any Seller Party or any Affiliate thereof;
(w) Seller has not entered into any compromise or settlement of any Legal Proceeding or investigation by any Governmental Body;
(x) Seller has not transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(y) Seller has not failed (i) to file any material reports or take steps necessary to comply with applicable Laws and (ii) to maintain in good standing all Permits; and
(z) Seller has not entered into any agreements or commitments to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.7.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly contemplated by this Agreement or as set forth in Section 3.9 on Schedule 3.8, since the date of the Target Disclosure Schedule, Seller Balance Sheet Date:
(i) there has not been:
(a) been an event which had a Material Adverse Effect nor has there occurred any material change event which, to the knowledge of the Seller, is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Effect;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Seller having a replacement cost of more than $5,000 for any single loss or $20,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of any membership interest of the capital stock of Target Seller or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Seller of its own capital stockany outstanding membership, or other ownership interest in, the Seller;
(hiv) the Seller has not awarded or paid any material labor trouble bonuses to employees of the Seller with respect to the fiscal year ended 2006, except to the extent accrued on the Seller Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Seller’s directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Seller or to provide incentives to increase sales of products in the Business);
(kv) there has not been any obligation change by the Seller in accounting or liability incurred Tax reporting principles, methods or policies;
(vi) the Seller has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Seller has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) the Seller has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Seller;
(ix) the Seller has not mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Seller, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) the Seller has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Seller;
(xi) the Seller has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Seller;
(xii) the Seller has not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $100,000 in the actions specified aggregate;
(xiii) the Seller has not instituted or settled any material legal proceeding; and
(xiv) the Seller has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 3.8.
Appears in 1 contract
Sources: Asset Purchase Agreement (Titan Global Holdings, Inc.)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly contemplated by this Agreement or as set forth in Section 3.9 of on Schedule 4.10, since the Target Disclosure Schedule, Balance Sheet Date:
(i) there has not been:
(a) been any material change Material Adverse Change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Change;
(bii) there has not been any material contingent liability incurred damage, destruction or loss, not covered by Target as guarantor or otherwise insurance, with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any property and assets of the properties Companies having a replacement cost of Target which remains in existence on the date hereof more than $50,000 for any single loss or will remain on the Closing Date$150,000 for all such losses;
(diii) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and there has not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Companies or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Seller or the Companies of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Companies;
(hiv) none of the Companies increased rates of compensation (including bonuses) payable or to become payable to their employees, officers, agents or consultants with respect to the Business, except to the extent accrued on the Balance Sheet or entered into any material labor trouble employment, deferred compensation, severance or material claim of unfair labor practices involving Target; similar agreement (nor amended any material change in such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Companies' directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, Companies awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any such directors, officers, employees, agents or representatives, except as to all of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred above, other than normal increases in the ordinary course of business thereafterconsistent with past practice;
(kv) there has not been any change by any of the Companies in accounting or Tax reporting principles, methods or policies;
(vi) none of the Companies have entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) none of the Companies have failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(viii) none of the Companies have made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Seller;
(ix) none of the Companies have mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Companies, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(x) none of the Companies have discharged or satisfied any Lien, or paid any obligation or liability incurred by Target (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Companies;
(xi) none of the Companies have canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe Companies;
(lxii) none of the Companies have made or committed to make any change capital expenditures or capital additions or betterments in accounting methods excess of $50,000 individually or practices of Target;
(m) any other material transaction entered into by Target other than transactions $150,000 in the aggregate except in the ordinary course of business; or, and consistent with past practices;
(nxiii) none of the Companies have instituted or settled any agreement or understanding whether in writing or otherwise, for Target material Legal Proceeding; and
(xiv) neither the Seller nor the Companies have agreed to take any actions set forth in this Section 4.10.
(xv) There has not been any loan or advance by the Companies to any person, except a normal travel advance or other reasonable expense advance to an officer or employee of the actions specified Companies on normal trade terms extended to customers except in paragraphs the ordinary course of business and consistent with past practice;
(axvi) through There has not been any sale or transfer of any properties or assets, other than in the ordinary course of business and consistent with past practice or any cancellation of any debts or claims of the Companies;
(mxvii) aboveThere has not been any amendment, modification or termination of any material contract or agreement to which the Companies are a party or pursuant to which their properties or assets may be bound;
(xviii) There has not been any sale or granting to any party or parties of any license, franchise, option or other right of any nature whatsoever with respect to the Companies' business or termination of any such rights.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as contemplated by or in connection with this Agreement (including the transactions contemplated by Section 7.13 hereof), 2006 Target has conducted its business only in the ordinary course consistent with past practice andas permitted by Section 7.2, except or as otherwise set forth in Section 3.9 of on Schedule 4.10 hereto, since the Target Disclosure Schedule, there has not beenAudited Balance Sheet Date:
(a) there has not been any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the properties and assets of the Companies or the Subsidiaries having a replacement cost of more than Seven Hundred Fifty Thousand Dollars ($750,000) for any single loss;
(gb) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target any Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target any Seller or any Company or any Subsidiary of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, any Company or any Subsidiary;
(hc) any material labor trouble or material claim of unfair labor practices involving Target; there has not been any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, Company or any bonus payment Subsidiary in accounting or arrangement made to Tax reporting principles, methods or with any of such officers or employeespolicies;
(id) no Company and no Subsidiary has entered into any material change with respect to transaction or Contract involving the officers expenditure of Targetmore than Seven Hundred Fifty Thousand Dollars ($750,000) or incurred or assumed any long-term debt exceeding Seven Hundred Fifty Thousand Dollars ($750,000);
(je) no Company and no Subsidiary has made any payment material loans, advances or discharge capital contributions to, or investments in, or guaranteed the material obligations of, any Person (other than any Company or Subsidiary) or paid any fees or expenses to any Seller or any Affiliate of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred any Seller other than in the ordinary course of business thereafterconsistent with past practice;
(f) no Company and no Subsidiary has mortgaged, pledged or subjected to any Lien any asset, or acquired any assets for which the aggregate consideration paid or payable in any individual transaction was in excess of Seven Hundred Fifty Thousand Dollars ($750,000);
(g) no Company and no Subsidiary has canceled or compromised any debt or claim with a value, individually or in the aggregate, exceeding Seven Hundred Fifty Thousand Dollars ($750,000) or amended, canceled, terminated, relinquished, waived or released any Contract involving the expenditure of more than Seven Hundred Fifty Thousand Dollars ($750,000);
(h) no Company and no Subsidiary has made or committed to make any capital expenditures or capital additions or betterments in excess of Seven Hundred Fifty Thousand Dollars ($750,000);
(i) no Company and no Subsidiary has settled any Legal Proceeding in which equitable relief was sought or which involved a payment in excess of Seven Hundred Fifty Thousand Dollars ($750,000), except for settlements that include a full and unconditional release in favor of the Companies and the Subsidiaries with no obligation for future performance or to make any further payments;
(j) except as required by Contracts existing on the Audited Balance Sheet Date, copies of which have been made available to Purchaser prior to the date hereof, there has not been any (i) increase in (x) the aggregate compensation of officers and directors of any Company or any Subsidiary or of employees of any Company or any Subsidiary having an annual base salary in excess of Two Hundred Thousand Dollars ($200,000) or (y) the aggregate compensation of the employees of any Company or any Subsidiary outside the ordinary course of business consistent with past practice; (ii) extraordinary bonus, benefit or other direct or indirect compensation paid to any officer, director and/or employee of any Company or any Subsidiary; (iii) except as set forth on Schedule 4.19, new severance, termination, retention, deferred compensation, bonus or other incentive compensation, profit sharing, stock option, stock appreciation right, restricted stock, stock equivalent, stock purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan adopted or authorized for the benefit of the officers, directors, and/or employees of any Company or any Subsidiary with respect to which any Company or any Subsidiary would have any liability, or (iv) adoption or material amendment of any collective bargaining agreement;
(k) there has not been any obligation sale, lease, transfer, assignment, distribution or liability incurred by Target to any other disposition of its officers, directors, shareholders or employees, including any material increases assets (except for sales in compensation, the ordinary course of business) by any Company or any loans or advances made by Target to any Subsidiary in excess of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesSeven Hundred Fifty Thousand Dollars ($750,000);
(l) to the Knowledge of Sellers, except as set forth on Schedule 4.10, there has not been any change in accounting methods disposal or practices lapse of Targetany rights in, to or for the use of any material Intellectual Property used by or held by any Company or any Subsidiary or other disposition of, any material Technology of any Company or any Subsidiary;
(m) there has not been any other material transaction entered into revaluation by Target any Company or any Subsidiary of any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, other than transactions in the ordinary course of business; orand
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) abovethere has not been a Company Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sensus Metering Systems Inc)
Absence of Certain Developments. Since Except as disclosed on Schedule 2.10, since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been1993:
(a) Cour▇▇▇▇ ▇▇▇ not redeemed or repurchased, or committed to redeem or repurchase directly or indirectly, any material change in the financial condition, properties, assets, liabilities, business shares of its capital stock or operations declared or paid any dividends or distribution with respect to any shares of Targetits capital stock;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing toCour▇▇▇▇ ▇▇▇ not issued, or waiver of committed to issue, any material right ofequity securities, Target.securities convertible into equity securities, or warrants, options or other rights to acquire equity securities, or bonds or other securities;
(c) neither of the Sellers has borrowed, or committed to borrow, any amount or incurred or become subject to any material mortgageliabilities, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and except current liabilities incurred in the ordinary course of business and not prohibited by liabilities under contracts entered into in the terms ordinary course of this Agreementbusiness;
(d) neither of the Sellers has discharged or satisfied any material lien or encumbrance or paid any material obligation or liability other than current liabilities paid in the ordinary course of business;
(e) neither of the Sellers has mortgaged, pledged or subjected to any purchaselien, sale or other disposition, charge or any agreement other encumbrance, any of its properties or other arrangement assets, except liens for current property taxes not yet due and payable;
(f) neither of the purchaseSellers has sold, sale assigned, transferred or other dispositionotherwise disposed of or committed to sell, assign, transfer or otherwise dispose of any of its tangible or intangible assets (including books and records), except in the ordinary course of business, or canceled any material properties debts or assets claims;
(g) neither of Target other than the Sellers has waived any rights of material value, whether or not in the ordinary course of business or as contemplated by this Agreementconsistent with past practice;
(fh) neither of the Sellers has made capital expenditures except as planned or committed to prior to the date of the execution hereof, and in any event only in reasonable amounts required for the efficient operations of its business in the future;
(i) neither of the Sellers has paid or committed to pay any bonuses or similar payments, except in the ordinary course of business;
(j) neither of the Sellers has made, or committed to make, any loans or advances to, guarantees for the benefit of, or any investments in, any person or entity;
(k) neither of the Sellers has made or committed to any charitable or political contributions or pledges in excess of an aggregate of One Thousand Dollars ($1,000.00);
(l) neither of the Sellers has suffered any material damage, destruction or loss of Target properties or assetscasualty loss, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;or,
(m) neither of the Sellers has made any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) amendment to any collective bargaining agreement or understanding whether in writing or otherwise, for Target pension benefit plan to take any of the actions specified in paragraphs (a) through (m) abovewhich it is a party.
Appears in 1 contract
Absence of Certain Developments. Since December Except as expressly set forth on Schedule 4.7, since August 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except 2007 (or such other date as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, below):
(i) there has not been:
(a) been any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of either UBES or UBEI, having a replacement cost of more than $5,000 for any single loss or $50,000 for all such losses;
(gii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target membership interests in UBES or UBEI or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target any of its own capital stockthe Seller or UBES of UBEI of any outstanding membership interests or other securities of, or other ownership interest in, either UBES or UBEI;
(hiii) neither of UBES nor UBEI nor Seller, with respect to any material labor trouble current or material claim of unfair labor practices involving Target; any material change former Seller employee involved in the compensation payable UBES Business or UBEI Business, has (A) awarded or paid any bonuses to become payable by Target to any employees of its officers UBES or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change UBEI with respect to the officers fiscal year ended on the UBES Balance Sheet or the UBEI Balance Sheet, respectively, or with respect to the current fiscal year of TargetUBES or UBEI, respectively, except to the extent accrued on the Interim Balance Sheet, (B) entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement) except to the extent accrued on the Interim Balance Sheet;
(jiv) there has not been any payment change by UBES or UBEI (or Seller as to the Business only) in accounting or Tax reporting principles, methods or policies;
(v) neither of UBES nor UBEI has entered into any transaction or Material Contract or conducted its business (with respect to any of the above, other than in the Ordinary Course of Business consistent with past practice);
(vi) neither of UBES nor UBEI has failed to promptly pay and discharge current liabilities in the Ordinary Course of Business consistent with past practices, except for liabilities that were or are being disputed in good faith by appropriate proceedings and, if material, are reflected in the Interim Balance;
(vii) neither of UBES nor UBEI has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to Seller or any Affiliate of Seller other than as reflected in the Interim Balance Sheet;
(viii) none of Seller, UBES or UBEI, as to UBES or UBEI or the assets of UBES or UBEI, has mortgaged, pledged or subjected to any Lien any of their assets, respectively, other than any Lien constituting a material lien purchase money security interest with respect to any assets acquired in the Ordinary Course of Business after October 19, 2007, or liability acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafterconsistent with past practice;
(kix) neither of UBES nor UBEI has discharged or satisfied any Lien, or paid any obligation or liability incurred by Target to any of its officers, directors, shareholders (fixed or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employeescontingent), except normal compensation and expense allowances payable to directors, officers or employeesin the Ordinary Course of Business consistent with past practice;
(lx) since August 31, 2007, none of Seller, UBES or UBEI has canceled or compromised any change account receivable, debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in accounting methods or practices the Ordinary Course of TargetBusiness consistent with past practice other than as has been provided to Buyer in writing;
(mxi) neither of UBES nor UBEI has made or committed to make any other material transaction capital expenditures or capital additions or betterments not reflected in the balance sheet in excess of $5,000 individually or $50,000 in the aggregate;
(xii) neither of UBES nor UBEI entered into by Target or extended existing customer contracts for a period exceeding one year or having a projected annual revenue of greater than $250,000;
(xiii) neither of UBES nor UBEI has instituted, become a party to, been threatened with, have Knowledge of any claim, or settled any material Legal Proceeding;
(xiv) neither of UBES nor UBEI has amended, modified or waived any term or provision of any lease or other agreement between it and Seller or an Affiliate of Seller, or, since October 19, 2007,any other Person, other than transactions waivers that may have been granted in the ordinary course Ordinary Course of business; orBusiness with respect to immaterial issues involving such leases or other agreements or the termination of any marketing or procurement agreements between Seller or Seller’s Affiliates and UBES or UBEI;
(nxv) none of Seller, UBES or UBEI has made or revoked any agreement Tax election, or understanding whether in writing settled or otherwisecompromised any Tax dispute;
(xvi) except with respect to East Kansas Agri-Energy, for Target LLC and LifeLine Foods, LLC, none of Seller, UBES or UBEI is aware of, or has received formal notice of termination pursuant to take the notice provisions of any of the actions specified Material Contracts, and none of Seller, UBES or UBEI has received notice from, or given notice to, any of such vendors, suppliers, or customers with respect to the termination of, or intent to terminate, any business relationship with either of UBES nor UBEI;
(xvii) neither of UBES nor UBEI has entered into any Contracts with Seller or any Affiliate of Seller or predecessors or successors of Seller, or its Affiliates; and
(xviii) neither Seller, UBES nor UBEI have agreed to anything which would contravene any information set forth in paragraphs (a) through (m) abovethis Section 4.7.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (US BioEnergy CORP)
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2006 Target the Business has conducted its business only been operated in the ordinary course consistent with past practice andOrdinary Course of Business, except as otherwise set forth has incurred no Liabilities other than in Section 3.9 the Ordinary Course of the Target Disclosure Schedule, Business and there has not been:
(a) any material change Material Adverse Change, or the occurrence of any event that could reasonably be expected to result, individually or in the financial conditionaggregate, properties, assets, liabilities, business or operations of Targetin a Material Adverse Change;
(b) any material contingent liability incurred by Target as guarantor change, not disclosed in the Financial Statements, in the accounting methods, practices or otherwise with respect to the obligations principles or cash management practices of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.Seller;
(c) any material mortgage, encumbrance or lien placed on revaluation of any of the properties Assets, including, without limitation, the write-down or write-off of Target which remains notes, accounts receivable or inventory, other than in existence on the date hereof or will remain on the Closing DateOrdinary Course of Business;
(d) any material obligation sale, assignment, transfer, distribution, mortgage or liability pledge of any natureof the Assets of Seller, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred except sales of inventory in the ordinary course Ordinary Course of business and not prohibited by Business, or the terms placement of this Agreementany Encumbrance on any of the Assets;
(e) any purchasefailure to use commercially reasonable efforts to preserve Seller, sale or other dispositionto keep available to Seller the services of its key employees and to preserve for Seller the goodwill of its suppliers, or any agreement or other arrangement for the purchasevendors, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of customers and others having business or as contemplated by this Agreementrelations with it;
(f) any material damagebreach or default (or event that with notice or lapse of time would constitute a breach or default), destruction acceleration, termination (or loss threatened termination), modification or cancellation of Target properties or assets, whether or not covered by insuranceany contract to which Seller is a party;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(hi) any material labor trouble or material claim of unfair labor practices involving Target; any material change increase in the compensation payable or to become payable by Target Seller to any of its officers employees, including, without limitation, any bonuses and/or commissions; (ii) adoption, amendment or employees increase in the coverage or benefits available under any Employee Benefit Plan or Benefit Arrangement or (iii) amendment or execution of any employment, deferred compensation, severance, consulting, non-competition, employee retention plan or similar agreement to which Seller is a party or involving an employee of Seller (other than normal merit increases in accordance with its usual practicesemployment terminable at will without penalty);
(h) any termination of employment (whether voluntary or involuntary) of, or receipt or expectation of receipt of any resignation by, any key employee of the Business, or any bonus payment termination of employment (whether voluntary or arrangement made to or with any involuntary) of such officers or employeesemployees of Seller materially in excess of historical attrition in personnel;
(i) except as specifically described in Schedule 3.7(i), any material change with respect to the officers of Targettransaction between Seller and any Shareholder and/or Affiliate;
(j) any payment cancellations or discharge waivers of a any Claims or rights of Seller of material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereaftervalue;
(k) any obligation or liability incurred execution of capital leases by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesSeller;
(l) the incurrence of debt of any change in accounting methods or practices of Targetkind;
(m) making or changing any election, changing any annual accounting period, adopting or changing any accounting method, filing any amended Tax Return, settling any Tax Claim or assessment relating to the Business, surrendering any right to claim a refund of Taxes, consenting to an extension or waiver of the limitation period applicable to any Tax Claim or assessment, or taking any other material transaction entered into by Target similar action, or omitting to take any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other than transactions in action or omission would have the ordinary course effect of business; orincreasing the present or future Tax liability or decreasing any present or future Tax asset of the Business;
(n) any declaration or payment of any dividends or distributions on or in respect of any of Seller’s capital stock or redemption, purchase or acquisition of Seller’s capital stock;
(o) any material change in cash management practices and policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts receivable, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(p) any other transaction, agreement or commitment entered into or affecting the Business or the Assets of Seller not made in the Ordinary Course of Business; or
(q) any agreement or understanding whether in writing to do, or otherwiseresulting in, for Target to take any of the actions specified in paragraphs foregoing.
(ar) through (m) aboveany cash payments or receipts from the Effective Date to the Closing Date for amounts related to Excluded Assets or Retained Liabilities, which if made or received will be treated as an adjustment to the Holdback per Section 2.8(c).
Appears in 1 contract
Sources: Asset Purchase Agreement (Precision Optics Corporation, Inc.)
Absence of Certain Developments. Since December 31(a) Except as set forth in the attached Further Developments Schedule, 2006 Target since the date of the 2003 Balance Sheet, the Company and each of its Subsidiaries has conducted its business only in the ordinary course of business consistent with past custom and practice and(including, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedulewithout limitation, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations offering of others special sales or incentive programs or the filling of its distribution channels), has incurred no liabilities other than in the ordinary course of business consistent with past custom and practice, and neither the Company nor any cancellation of its Subsidiaries has:
(i) discharged or satisfied any material debt Lien or claim owing topaid any material obligation or liability, other than current liabilities paid in the ordinary course of business consistent with past custom and practice, or waiver of canceled, compromised, waived or released any material right of, Target.or material claim;
(cii) sold, assigned, licensed or transferred any of its assets (except for sales of (A) inventory in the ordinary course of business consistent with past custom and practice or (B) obsolete equipment in the ordinary course of business consistent with past custom and practice where the value of such obsolete equipment does not exceed $25,000 individually or $100,000 in the aggregate for all such sales) or mortgaged, pledged or subjected them to any material mortgageLien, encumbrance except for Permitted Liens, or lien placed on canceled without fair consideration any material debts or material claims owing to or held by it;
(iii) sold, assigned, transferred, abandoned or permitted to lapse any Government Licenses which, individually or in the aggregate, are material to the Business, or any of the properties Proprietary Rights or other intangible assets, or disclosed any material proprietary confidential information to any Person, except in the ordinary course of Target which remains business consistent with past custom and practice, or granted any license or sublicense of any rights under or with respect to any Proprietary Rights;
(iv) made or granted any bonus or any wage or salary increase to any employee, trustee, officer or director, or made any other material change in existence on employment terms for any employee, trustee, officer or director;
(v) made or granted any increase in, or amended or terminated, any existing plan, program, policy or arrangement, including without limitation, any Plan (as defined in Section 5.18(a)), employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, or amended or renegotiated any existing collective bargaining agreement or entered into any new collective bargaining agreement or multiemployer plan, or except as may be required under applicable law;
(vi) conducted its cash management customs and practices (including, without limitation, the date hereof collection of receivables, payment of payables, maintenance of inventory control and pricing and credit practices (including, without limitation, extension of credit terms or will remain sales discount programs)) other than in the usual and ordinary course of business consistent with past custom and practice;
(vii) made any capital expenditures or commitments therefor such that the aggregate outstanding amount of unpaid obligations and commitments with respect thereto shall comprise in excess of $50,000 on the Closing Date;
(dviii) made any loans or advances to, or Guaranties for the benefit of, or entered into any transaction with any Insider, except for the transactions contemplated by this Agreement and for advances consistent with past custom and practice made to employees, trustees, officers and directors for travel expenses incurred in the ordinary course of business or entered into any transaction, arrangement or contract (including, without limitation, any transfer of any assets or placing a Lien on any assets) except on an arms-length basis in the ordinary course of business in accordance with past custom and practice;
(ix) suffered any extraordinary loss, damage, destruction or casualty loss or waived any rights of material value, whether or not covered by insurance and whether or not in the ordinary course of business or consistent with past custom and practice;
(x) received notification, or become aware of facts which would lead a reasonable person to believe, that any material obligation customer or liability supplier will stop or decrease in any material respect the rate of business done with the Company or any nature, whether accrued, absolute, contingent of its Subsidiaries or otherwise, asserted or unasserted, incurred by Target recorded any sales revenues pursuant to transactions in which the purchaser of such products has the right to return such products at a future date (other than obligations pursuant to the terms and conditions of the Company’s and its Subsidiaries’ standard warranty terms);
(xi) issued or sold or agreed to issue or sell any notes, bonds or other debt securities or any equity securities or any securities convertible, exchangeable or exercisable into any equity securities;
(xii) borrowed any amount or incurred or become subject to any material liabilities, except current liabilities incurred in the ordinary course of business and not prohibited by liabilities under contracts entered into in the terms ordinary course of this Agreementbusiness consistent with past custom and practices;
(exiii) declared, set aside or paid any purchase, sale dividend or distribution of cash or other dispositionproperty to any shareholders of the Company or stockholders of any of any of its Subsidiaries with respect to its shares of beneficial ownership or stock, as the case may be (except that a wholly-owned Subsidiary of the Company may declare and pay a cash dividend to the Company) or purchased, redeemed or otherwise acquired any shares of its shares of beneficial interest or capital stock or any warrants, options or other rights to acquire its shares of beneficial interest or stock, or made any other payments to any shareholder of the Company or any of its Subsidiaries;
(xiv) made any capital investment in, any loan to, or any agreement or other arrangement for the purchase, sale or other disposition, of any acquisition of the material properties securities or assets of Target any other Person or taken any steps to incorporate any Subsidiary;
(xv) amended or authorized the amendment of the Declaration of Trust, articles of organization, bylaws or other organizational documents, as applicable, of the Company or any of its Subsidiaries;
(xvi) entered into any other material transaction, other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance consistent with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation past custom and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of businesspractice; or
(nxvii) any agreement agreed or understanding whether in writing or otherwise, for Target committed to take any of the actions specified in paragraphs foregoing.
(ab) through No party (mincluding the Company or any of its Subsidiaries) abovehas accelerated, terminated, modified or canceled any contract, lease, sublease, license, sublicense or other agreement set forth on the attached “Contracts Schedule.”
Appears in 1 contract
Sources: Merger Agreement (Broder Bros Co)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only Except as contemplated by or in the ordinary course consistent connection with past practice and, except this Agreement or as otherwise set forth in Section 3.9 of on Schedule 3.9, since the Target Disclosure Schedule, Balance Sheet Date:
3.9.1 there has not been:
(a) been any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than One Hundred Fifty Thousand Dollars ($150,000) for any single loss;
(g) 3.9.2 there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Seller or the Company of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Company;
(h) any material labor trouble or material claim of unfair labor practices involving Target; 3.9.3 there has not been any material change by the Company in accounting or Tax reporting principles, methods or policies;
3.9.4 the compensation payable Company has not entered into any transaction or to become payable by Target to any Contract involving the expenditure of more than One Hundred Fifty Thousand Dollars ($150,000) or conducted its officers or employees business other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafterconsistent with past practice;
(k) 3.9.5 the Company has not made any obligation guarantee or liability incurred by Target any material borrowings, loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of Seller other than in the ordinary course of business consistent with past practice;
3.9.6 the Company has not mortgaged, pledged or subjected to any Lien any asset, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any of its officersassets for which the aggregate consideration paid or payable in any individual transaction was in excess of One Hundred Fifty Thousand Dollars ($150,000), directorsexcept for assets mortgaged, shareholders or employeespledged, including any material increases in compensation, or any loans or advances made by Target subjected to any Lien, acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesin the ordinary course of business consistent with past practice;
3.9.7 the Company has not canceled or compromised any debt or claim with a value, individually or in the aggregate, exceeding One Hundred Fifty Thousand Dollars (l$150,000) or amended, canceled, terminated, relinquished, waived or released any change in accounting methods Contract or practices right involving the expenditure of Targetmore One Hundred Fifty Thousand Dollars ($150,000);
3.9.8 the Company has not made or committed to make any capital expenditures or capital additions or betterments in excess of One Hundred Fifty Thousand Dollars (m$150,000) any other material transaction entered into by Target other than transactions in the ordinary course of business; or;
3.9.9 the Company has not instituted or settled any Legal Proceeding in which equitable relief was sought or in which claimed damages exceeded One Hundred Fifty Thousand Dollars (n) $150,000);
3.9.10 there has not been any agreement material change in compensation or understanding whether in writing bonus payments or otherwise, arrangements for Target to take any Employees of the actions specified in paragraphs (a) through (m) aboveCompany; and
3.9.11 there has not been any amendment or termination of any Contract that has a Company Material Adverse Effect.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement or as set forth on Schedule 5.7, 2006 Target since the Balance Sheet Date, (i) Seller has conducted its business the Business only in the ordinary course consistent with past practice andOrdinary Course of Business, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, (ii) there has not beenbeen any event, change, occurrence or circumstance that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or could reasonably be expected to have a Material Adverse Effect and (iii) Seller has not:
(aA) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others Business (1) increased the salary or any cancellation other compensation of any material debt manager, director, officer or claim owing Employee of Seller except for normal year-end increases and bonuses in the Ordinary Course of Business, (2) granted any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee, officer, manager, director or consultant, (3) increased the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the managers, directors, officers, Employees, agents or representatives of Seller or otherwise modified or amended or terminated any such plan or arrangement or (4) entered into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any managers, directors or officers of Seller (or amend any such agreement) to which Seller is a party;
(1) except in the Ordinary Course of Business issued, created, incurred, assumed, guaranteed, endorsed or otherwise became liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness; (2) except in the Ordinary Course of Business, paid, repaid, discharged, purchased, repurchased or satisfied any Indebtedness issued or guaranteed by Seller; (3) modified the terms of any Indebtedness or other Liability; or (4) made any loans, advances of capital contributions to, or waiver of investments in, any material right of, Target.other Person;
(cC) in each case to the extent it could bind or adversely affect Purchaser post Closing, (1) made, changed or revoked any Tax election, settled or compromised any Tax claim or liability or entered into a settlement or compromise, or changed (or made a request to any taxing authority to change) any material mortgageaspect of its method of accounting for Tax purposes, encumbrance or lien placed on (2) prepared or filed any Tax Return (or any amendment thereof) unless such Tax Return had been prepared in a manner consistent with past practice;
(D) except in the Ordinary Course of Business, been subject to any Lien or otherwise encumbered or permitted, allowed or suffered to be encumbered, any of the properties of Target which remains in existence on or assets (whether tangible or intangible) of, or used by, Seller with respect to the date hereof or will remain on the Closing DateBusiness;
(dE) with respect to the Business, acquired any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets or sold, assigned, licensed, transferred, conveyed, leased or otherwise disposed of Target any assets, other than for fair consideration in the ordinary course Ordinary Course of business or as contemplated by this AgreementBusiness;
(fF) entered into or agreed to enter into any material damagemerger or consolidation with, destruction any corporation or loss other entity, nor engaged in any new business or invested in, made a loan, advance or capital contribution to, or otherwise acquired the securities of Target properties or assets, whether or not covered by insuranceany other Person;
(gG) any declarationdeclared, setting aside set aside, made or payment of any paid a dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stocksecurities of, or other ownership interests in, Seller or repurchased, redeemed or otherwise acquired any outstanding equity interests or other securities of, or ownership interests in, Seller;
(hH) with respect to the Business, cancelled or compromised any debt or claim or waive or release any material labor trouble or material claim right of unfair labor practices involving Target; any material change Seller except in the compensation payable or to become payable by Target to any Ordinary Course of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeesBusiness;
(iI) introduced any material change with respect to the officers operation of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employeesBusiness, including any material increases change in compensationthe types, nature, composition or any loans or advances made by Target to any quality of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesservices;
(lJ) entered into any change Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Purchaser, (i) to compete with or conduct any business or line of business in accounting methods any geographic area or practices (ii) solicit the employment of Targetany persons;
(mK) terminated, amended, restated, supplemented, abandoned or waived any rights under any (1) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other material transaction than in the Ordinary Course of Business or (2) Permit;
(L) with respect to the Business, changed or modified its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due), or failed to pay or delayed payment of payables or other liabilities;
(M) with respect to the Business, entered into by Target other than transactions any commitment for capital expenditures in excess of $150,000 for any individual commitment and $350,000 for all commitments in the ordinary course of business; oraggregate;
(nN) amended the governing documents of Seller;
(O) entered into any agreement transaction or understanding whether entered into, modified or renewed any Contract which by reason of its size, nature or otherwise is not in writing the Ordinary Course of Business; or otherwise, for Target (P) agreed to take any of the actions specified in paragraphs (a) through (m) abovedo anything prohibited by this Section 5.7(iii).
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly contemplated by this Agreement or as set forth in Section 3.9 of on Schedule 3.8, since the Target Disclosure Schedule, Balance Sheet Date:
(i) there has not been:
(a) been any material change Material Adverse Change in the financial condition, properties, assets, liabilities, business or operations of TargetBusiness nor has there occurred any event which is reasonably likely to result in a Material Adverse Change in the Business;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Business having a replacement cost of more than $5,000 for any single loss or $10,000 for all such losses;
(giii) the Seller has not awarded or paid any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect bonuses to employees of the capital stock of Target Seller related to the Business with respect to the fiscal year ended 2006, except to the extent accrued on the Balance Sheet or entered into any direct employment, deferred compensation, severance or indirect redemption, purchase similar agreement (nor amended any such agreement) or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in agreed to increase the compensation payable or to become payable by Target it to any of its officers the employees, agents or employees representatives related to the Business or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Business);
(kiv) there has not been any obligation change by the Seller in accounting or liability incurred tax reporting principles, methods or policies related to the Business;
(v) the Seller, with regard to the Business, has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vi) the Seller, with regard to the Business, has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(vii) the Seller, with regard to the Business, has not mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Seller, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nviii) the Seller, with regard to the Business, has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Seller;
(ix) the Seller, with regard to the Business, has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Seller;
(x) the Seller, with regard to the Business, has not made or committed to make any capital expenditures or capital additions or betterments in excess of $10,000 individually or $20,000 in the actions specified aggregate;
(xi) the Seller, with regard to the Business, has not instituted or settled any material legal proceeding; and
(xii) the Seller has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 3.8.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Latest Unaudited Statement, 2006 Target there has not been any Material Adverse Effect, and since that date, except as set forth on Schedule 4(f), the Company has conducted its business only operations in the ordinary course consistent with past practice of business, and, except as otherwise set forth in Section 3.9 without limiting the generality of the Target Disclosure Schedule, there has not beenforegoing:
(a) the Company has not transferred, sold, assigned, allowed to lapse or expire, or otherwise disposed of any material change of its properties or assets (including any Company Intellectual Property), other than sales of inventory for fair consideration in the financial condition, properties, assets, liabilities, ordinary course of business or operations the retirement of Targetsupplies, equipment or other assets due to wear, obsolescence, upgrade or replacement, or other assets having a value in the aggregate of not more than $75,000;
(b) any material contingent liability incurred by Target as guarantor the Company has not sold, transferred, assigned, exclusively licensed, or otherwise with respect to the obligations of others or any cancellation disposed of any material debt or claim owing to, or waiver of any material right of, Target.its rights to Owned Company Intellectual Property;
(c) the Company has not abandoned or withdrawn, or permitted the lapse, cancellation, expiration, or refusal of any material mortgage, encumbrance or lien placed on any Company Registered Intellectual Property (except for expiration of Company Registered Intellectual Property in accordance with the properties of Target which remains in existence on the date hereof or will remain on the Closing Dateapplicable statutory period);
(d) the Company has not terminated any material obligation agreement (or liability series of related agreements) outside the ordinary course of business;
(e) except in connection with the Co-Packer Sales Agreement, no party (including the Company) has accelerated, terminated or modified any naturematerial agreement or other arrangement (or series of related agreements or arrangements) to which the Company is a party or by which the Company is bound and, to the Knowledge of the Company, no party intends to take any such action;
(f) the Company has not compromised any right or claim (or series of related rights or claims) either involving more than $150,000 or outside the ordinary course of business;
(g) the Company has not experienced any material damage or loss (whether accruedor not covered by insurance) to its property;
(h) the Company has not (A) made any material change to its pricing, absolutediscount, contingent allowance, warranty or otherwisereturn policies, asserted or unasserted(B) agreed to any material pricing, incurred by Target discount, allowance, warranty or return terms with any customer, vendor, distributor or supplier, other than obligations in the ordinary course of business; Stock Purchase Agreement – Clever/KAC
(i) except as otherwise provided in Schedule 4(f)(viii), the Company has not
(A) granted any material increase in or accelerated the compensation or benefits paid or payable to any of their current or former employees or other service providers whose annual base compensation exceeds $150,000, (B) granted any severance, retention or termination pay to, or entered into or amended any severance, retention, bonus, termination, employment, consulting, or change in control agreement with, any of its current or former employees or other service providers, or (C) except as required by applicable laws, adopted, amended or terminated any Plan;
(j) the Company has not made, changed or revoked any material Tax election (other than in the ordinary course of business) or changed any material Tax accounting method or Tax accounting period, or amended any Tax Return, settled any Tax claim or assessment, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(k) the Company has conducted in all material respects its cash management protocols (including the collection of receivables, payment of payables, capital expenditures and pricing and credit practices) in the ordinary course of business consistent with past practice;
(l) the Company has not declared, set aside or paid any dividend or distribution with respect to its securities;
(m) the Company has not entered into any material settlement, conciliation or similar agreement, the performance of which will involve payment after the execution date of this Agreement;
(n) the Company has not borrowed any amount or incurred or become subject to any material liabilities, except current Indebtedness and other liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreementor consistent with past practice;
(eo) the Company has not made any loan to, or entered into any other transaction with, any of its directors, officers or employees, except for transactions occurring at arms’- length;
(p) materially delayed or postponed the payment of any accounts payable or commissions or any other accrued liability or obligation or accelerated the collection of (or discounted) any purchase, sale accounts or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target notes receivable other than in the ordinary course of business or as contemplated by this Agreement;business; and
(fq) any material damage, destruction or loss of Target properties or assets, whether or the Company has not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or committed to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clever Leaves Holdings Inc.)
Absence of Certain Developments. Since December 31, 2006 Target 2002, except as set forth on Schedule 2.11 attached hereto, Seller has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, and there has not been:
(a) any no material adverse change in the condition (financial condition, properties, or otherwise) of Seller or in the assets, liabilities, business or operations prospects of TargetSeller;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations any third parties who are not Affiliates of others Seller, no waiver of any valuable right of Seller or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.held by Seller;
(c) no increase in the compensation paid or payable to any material mortgageofficer, encumbrance director, employee or lien placed on any agent of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any natureSeller, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred normal merit increases made in the ordinary course of business and consistent with Seller's past practices;
(d) no loss, destruction or damage to any property of Seller, whether or not prohibited by insured, having an effect in excess of $25,000 in the terms of this Agreementaggregate;
(e) any purchase, sale no labor dispute involving Seller and no change in the personnel of Seller or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, terms and conditions of any of the material properties or assets of Target their employment other than in the ordinary course of business or as contemplated by this Agreementbusiness;
(f) no acquisition or disposition of any material damageassets (or any contract or arrangement therefore), destruction or loss including any Seller Intellectual Property Assets, nor any other transaction by Seller, in each case other than for fair value in the ordinary course of Target properties or assets, whether or not covered by insurancebusiness;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any no change in accounting methods or practices of TargetSeller, including any changes in its revenue recognition or accrual and reserve policies and practices;
(mh) no reduction in any accrued expenses or other material transaction entered into by Target liabilities, except for payments related to the liability for which the accrual was originally established;
(i) other than transactions with respect to any purchase orders, no amendment or termination of any contract or agreement to which Seller is a party or by which it is bound which is expected or estimated to result, or actually results, in the ordinary course a loss of business; orrevenues to Seller in excess of $25,000;
(nj) any agreement or understanding whether in writing no commitment (contingent or otherwise, for Target ) to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Haights Cross Communications Inc)
Absence of Certain Developments. Since December 31the Balance Sheet Date (and, 2006 Target with respect to clauses (a), (e), (f) and (p), the date that is 12 months prior to the Balance Sheet Date):
(a) there has not been any Seller Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Seller Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of Seller having a replacement cost of more than $5,000 for any single loss or $10,000 for all such losses;
(c) Seller has not made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of Seller, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of Seller other than officers or senior managers;
(d) Seller has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by Seller in accounting or Tax reporting principles, methods or policies;
(f) Seller has not conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bg) Seller has not entered into (1) any material contingent liability incurred by Target as guarantor Contract that is not an Included Contract or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c2) any other material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Datetransaction;
(dh) any material obligation Seller has not hired employees or liability engaged independent contractors to provide services for clients of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target Seller other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damageconsistent with, destruction or loss of Target properties or assetsand at a level consistent with, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice;
(i) Seller has not materially breached any material change with respect to the officers of TargetIncluded Contract or materially amended any Included Contract;
(j) Seller has not failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) Seller has not made any payment loans, advances or discharge capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred Seller other than intercompany transactions in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesconsistent with past practice;
(l) Seller has not mortgaged, pledged or subjected to any change Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in accounting methods or practices the ordinary course of Targetbusiness consistent with past practice;
(m) Seller has not discharged or satisfied any other material transaction entered into by Target other than transactions Lien, or paid any obligation or Liability, except in the ordinary course of business; orbusiness consistent with past practice and which, in the aggregate, are not material to Seller;
(n) Seller has not canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past practice and which, in the aggregate, are not material to the Company;
(o) Seller has not made or otherwisecommitted to make any capital expenditures or capital additions or improvements in excess of $5,000 individually or $10,000 in the aggregate, for Target to take except as set forth in the Seller Disclosure Schedule, or otherwise in the ordinary course of business consistent with past practices;
(p) Seller has not entered into any prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the sales of its services for periods prior to any Closing hereunder;
(q) Seller has not amended any of its Organizational Documents;
(r) Seller has not issued any membership interests or any security exercisable or exchangeable for or convertible into membership interests of Seller; and
(s) Seller has not entered into any agreements to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.8 which have not been consummated as of the date hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date or as disclosed in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 SECTION 2.11 of the Target Disclosure Schedule, there has not beensince April 30, 2002 neither the Company nor Lucas has:
(a) borrowed any material change in the financial condition, properties, assets, liabilities, business amount or operations of Target;
incurred or become su▇▇▇▇▇ to any liability except (bi) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and current liabilities incurred in the ordinary course of business and (ii) liabilities under contracts entered into in the ordinary course of business;
(b) granted any Lien or any other encumbrance on any of the Acquired Assets except (i) Liens for current property taxes not prohibited yet due and payable, (ii) Liens imposed by law and incurred in the terms ordinary course of this Agreementbusiness for obligations not yet due to carriers, warehousemen, laborers, materialmen and the like, or (iii) Liens in respect of pledges or deposits under workers' compensation laws;
(c) discharged or satisfied any Lien or paid any liability other than current liabilities paid in the ordinary course of business;
(d) sold, assigned or transferred (including, without limitation, transfers to any employees, Affiliates, shareholders or members) any tangible assets of the Business except for sales of inventory in the ordinary course of business;
(e) disclosed, to any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target Person other than its employees, agents and representatives, Buyer or authorized representatives of Buyer, any proprietary confidential information, other than pursuant to a confidentiality agreement prohibiting the use or further disclosure of such information, which agreements are identified in the Disclosure Schedule under the caption referencing this Section 2.09(e) and are in full force and effect on the date hereof;
(f) modified or canceled any debts or claims or waived any rights of material value or suffered any extraordinary losses or adverse changes in collection loss experience, whether or not in the ordinary course of business or as contemplated by this Agreementconsistent with past practice;
(fg) entered into any transaction, or modified any agreement, arrangement or understanding, with any Insider;
(h) entered into, terminated or modified any other material agreement except in the ordinary course of business and consistent with past custom and practice;
(i) suffered any material theft, damage, destruction or loss of Target or to any property or properties owned or assetsused by it in connection with the Business, whether or not covered by insurance;
(gj) made or granted any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target bonus or any direct wage, salary or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target increase to any director, officer, employee with a base salary or base compensation of its officers or employees other more than normal merit increases in accordance with its usual practices$5,000 per year, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafterconsultant;
(k) entered into or modified any obligation employment agreement, arrangement or liability incurred by Target to understanding with any of its officersdirector, directors, shareholders officer or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesemployee;
(l1) made or granted any change increase in accounting methods any employee benefit plan or practices of Targetarrangement, or amended or terminated any existing employee benefit plan or arrangement, or adopted any new employee benefit plan or arrangement or made any commitment or incurred any liability to any labor organization;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) above.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly required by this Agreement or as set forth in Section 3.9 of on Schedule 5.8, since the Target Disclosure Schedule, there has not beenBalance Sheet Date:
(a) there has not been any material change Material Adverse Change in the financial condition, properties, assets, liabilities, business or operations of TargetPartnership nor has there occurred any event which is reasonably likely to result in a Material Adverse Change in the Partnership;
(b) the Partnership has not made any material contingent liability incurred by Target as guarantor or otherwise change with respect to any method of management, operation or accounting in respect of the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.Business;
(c) there has not been any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Partnership having a replacement cost of more than C$10,000 for any single loss or C$25,000 for all such losses;
(gd) the Partnership has not (i) awarded or paid any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect bonuses to employees of the capital stock of Target Partnership and the employee benefit plan with respect to the fiscal year ended June 30, 1998, or any direct (ii) entered into, or indirect redemption, purchase increased or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in agreed to increase the compensation payable or to become payable by Target to it or the coverage or benefits available under, any of its officers written or employees oral employment agreement or arrangement, deferred compensation agreement, severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers the Partnership's or the Vendor's directors, officers, employees;
, agents or representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice) and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Partnership taken as a whole;
(e) there has not been any change by the Partnership in accounting or Tax reporting principles, methods or policies;
(f) the Partnership has not entered into any transaction or Contract or conducted the Business other than in the ordinary course consistent with past practice;
(g) the Partnership has not failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(h) the Partnership has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Vendor and any Affiliate of the Vendor;
(i) the Partnership has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(j) the Partnership has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice;
(k) the Partnership has not canceled or compromised any obligation debt or liability incurred by Target claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe Partnership taken as a whole;
(l) the Partnership has not engaged in any change business in accounting methods or practices of Targetwhich it had not been engaged prior to the Balance Sheet Date;
(m) the Partnership has not made any other material transaction entered into by Target other than transactions Capital Expenditure or capital additions or betterments in excess of C$25,000 individually or C$100,000 in the ordinary course aggregate or committed to make but not made or completed any Capital Expenditure or capital additions or betterments of business; orany amount;
(n) the Partnership has not instituted or settled any agreement or understanding whether in writing or otherwise, for Target to take any material Legal Proceeding; and
(o) none of the actions specified Vendor, Denis or the Partnership has agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 5.8.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly ------------------------------- required by this Agreement or as set forth in Section 3.9 of on Schedule 4.10, since the Target Disclosure Schedule, Balance Sheet Date:
(i) there has not been:
(a) been any material change Material Adverse Change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Change;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of CND having a replacement cost of more than Ten Thousand Dollars ($10,000) for any single loss or Twenty-Five Thousand Dollars ($25,000) for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target CND or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target CND of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, CND;
(hiv) CND has not awarded or paid any material labor trouble bonuses to employees of CND with respect to the fiscal year ended December 31, 1995, or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers CND's directors, officers, employees, agents or employees representatives or increased or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of CND, including coverage or contributions required or permitted under the terms of any Employee Benefit Plan or required under any applicable law, rule or regulation);
(kv) there has not been any obligation change by CND in accounting or liability incurred Tax reporting principles, methods or policies;
(vi) CND has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) CND has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) CND has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of CND;
(ix) CND has not mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any of its officers, directors, shareholders or employeesassets, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) CND has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to CND or which is permitted or required under the terms of any Employee Benefit Plan or required under any applicable law, rule, or regulation and which in the aggregate would not be material to CND;
(xi) CND has not canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to CND;
(xii) CND has not made or committed to make any capital expenditures or capital additions or betterments in excess of Ten Thousand Dollars ($10,000) individually or Twenty-Five Thousand Dollars ($25,000) in the aggregate;
(xiii) CND has not entered into any transaction, arrangement or agreement or understanding whether in writing or otherwise, for Target to take with any of the actions specified its Affiliates;
(xiv) CND has not instituted or settled any material Legal Proceeding; and
(xv) CND has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.10.
Appears in 1 contract
Absence of Certain Developments. Since December 31[* * *], 2006 Target since [* * *], Seller has conducted its business only the Business in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure ScheduleOrdinary Course, there has not beenbeen any Material Adverse Effect nor has there occurred any event which is reasonably likely to result in a Material Adverse Effect, and Seller has not:
(a) any material change failed to maintain the Purchased Assets in substantially the financial condition, properties, assets, liabilities, business or operations of Targetsame condition as on [* * *] (ordinary wear and tear excluded);
(b) suffered any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the Purchased Assets of more than $[* * *] for any single loss or $[* * *] in the aggregate for any related losses, or any failure to maintain insurance policies unmodified and without interruption;
(c) made any change in the rate, timing, vesting, or funding of compensation, commission, bonus, or other direct or indirect remuneration payable or paid, or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention, or other compensation, retirement, welfare, fringe or severance benefit, or vacation pay, to or in respect of any manager, officer, employee, distributor, or agent of the Business, other than increases in the Ordinary Course in the base wages or salaries of employees of the Business other than officers or managers;
(d) entered into or amended any employment, consulting, deferred compensation, retention, change-of-control, incentive plan, severance, or similar agreement with any employee or service provider of the Business, or entered into or amended any Contract restricting its right to compete;
(e) entered into any collective bargaining agreement or relationship with any union or other labor organization;
(f) except for the transactions contemplated by this Agreement and the other Transaction Documents, entered into or amended any other Contract related to the Business other than in the Ordinary Course and which, in the aggregate, are not material in the aggregate to the Business;
(g) any declarationhired or terminated employees or engaged or terminated independent contractors that provide services to the Business other than in the Ordinary Course, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stockand at a level consistent with past practice;
(h) breached or affirmatively waived any material labor trouble breach or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target right with respect to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made Material Contract related to or with any of such officers or employeesthe Business;
(i) mortgaged, pledged, or subjected to any Lien (other than Permitted Liens) any of the Purchased Assets;
(j) acquired any assets included in the Purchased Assets, or sold, assigned, transferred, conveyed, leased, or otherwise disposed of any assets that would otherwise have been Purchased Assets, except for assets acquired, sold, assigned, transferred, conveyed, leased, or otherwise disposed of in the Ordinary Course;
(k) canceled, written off, or compromised any debt or claim or amended, canceled, terminated, relinquished, waived, or released any Contract or right, in each case, that relates materially to the continued conduct of the Business, except in the Ordinary Course and which, in the aggregate, are not material in the aggregate to the Business;
(l) entered into, amended, renewed, terminated, or permitted to lapse any Contract that relates materially to the continued conduct of the Business or transaction with any of its Affiliates, or paid to or received from any of its Affiliates any amount;
(m) made or committed to make any capital expenditures or capital additions or improvements that relate materially to the continued conduct of the Business: (i) in excess of [* * *] individually or [* * *] in the aggregate; or (ii) outside the Ordinary Course;
(n) entered into any prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing, in each case, related materially to the Business;
(o) changed its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or delay or deferral of the payment or collection thereof) or failed to maintain the level and quality of its Inventory, in each case, related materially to the Business;
(p) amended any of its Governing Documents, or failed to maintain its existence as a corporation, or failed to qualify or maintain its qualifications in any jurisdiction where it is required to be qualified to conduct the Business as a foreign entity;
(q) adopted any plan of merger, consolidation, reorganization, liquidation, or dissolution, or filed a petition in bankruptcy under any provisions of foreign, federal or state bankruptcy Law, or consented to the filing of any bankruptcy petition against it under any similar Law;
(r) issued any equity or debt securities or permitted any transfer thereof;
(s) incurred or guaranteed any Indebtedness related to the Business or secured by any of the Purchased Assets;
(t) incurred or guaranteed any Liabilities related to the Business (other than in the Ordinary Course);
(i) discharged, repaid, amended, modified, made payment on, canceled, or compromised any Indebtedness related exclusively to the Business or secured by any of the Purchased Assets, or discharged or satisfied any Lien (other than Permitted Liens); or (ii) engaged in any transaction or provided any consideration relating to the release, modification, or diminution of any guarantee, or other obligation of any Affiliate of Seller;
(v) failed to pay any of its Liabilities when due;
(w) entered into any compromise or settlement of any Legal Proceeding or any investigation by any Governmental Body;
(x) transferred, assigned, or granted any license or sublicense of any material rights that relate materially to the Business under or with respect to any Intellectual Property;
(y) failed in any material respect: (i) to comply with all Laws applicable to the Business (including Environmental Permits and Environmental Laws); and (ii) to hold and maintain in good standing all material Permits (including Environmental Permits) necessary for the conduct of the Business;
(z) made any filings or registrations that relate to the Business with any Governmental Body, except routine filings and registrations made in the Ordinary Course;
(aa) accelerated, terminated, not renewed, adversely modified, or canceled any Contract (or series of related Contracts) that is an Assigned Contract or would have been an Assigned Contract if not for such termination, non-renewal or cancelation, in each case involving more than $[* * *] to which Seller is or was a party or by which it is or was bound, or received written or oral notice from any other Person that such Person intends to take any of the foregoing actions;
(bb) adopted, amended, modified, or terminated any of its Employee Benefit Plans;
(cc) written up or down (or failed to write up or down) the value of any Purchased Assets, except in the Ordinary Course, in accordance with GAAP consistently applied;
(dd) except in the Ordinary Course of business, introduced any material change with respect to the officers Business, including with respect to the products or services it sells, the areas in which such products or services are sold, its methods of Target;producing or distributing its products, the levels of Inventory related to the Business that it maintains, its marketing techniques, or its accounting methods; and
(jee) entered into any payment agreements or discharge of a material lien commitments to do or liability of Target which was not shown on the Most Recent Balance Sheet or incurred perform in the ordinary course of business thereafter;
future any actions referred to in this Section 2.7 (kor disclosed an intent to do so) any obligation or liability incurred by Target to any of its officers, directors, shareholders taken or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target omitted to take any action that would be required to be disclosed in any section of the actions specified in paragraphs (a) through (m) aboveDisclosure Schedule.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement, since September 30, 2004:
(i) there has not been any Material Adverse Event nor has there occurred any event which is reasonably likely to result in a Material Adverse Event;
(fii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $25,000 for any single loss or $50,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target any Seller or the Company of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Company;
(hiv) the Company has not awarded or paid any material labor trouble bonuses to employees of the Company or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Company's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred representatives, other than in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Company taken as a whole;
(kv) there has not been any obligation change by the Company in accounting or liability incurred tax reporting principles, methods or policies;
(vi) the Company has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Company has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) Company has not made any loans, advances or capital contributions to, or investments in, any person or paid any fees or expenses to any Seller or any Affiliate (as defined in Section 4.14) of any Seller other than in the ordinary course consistent with past practice;
(ix) the Company has not mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Company, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) the Company has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company taken as a whole;
(xi) the Company has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Company taken as a whole;
(xii) the Company has not made or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $40,000 in the aggregate;
(xiii) the Company has not instituted or settled any material legal proceeding; and
(xiv) none of the actions specified Sellers nor the Company has agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.10.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement, since the Balance Sheet Date:
(i) there has not been any material adverse change nor has there occurred any event which is reasonably likely to result in a material adverse change;
(fii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Purchaser having a replacement cost of more than $25,000 for any single loss or $100,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Purchaser or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Purchaser of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Purchaser;
(hiv) the Purchaser has not awarded or paid any material labor trouble bonuses to employees of the Purchaser with respect to the fiscal year ended December 31, 2004, except to the extent accrued on the Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Purchaser's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Purchaser);
(kv) there has not been any obligation change by the Purchaser in accounting or liability incurred by Target Tax reporting principles, methods or policies;
(vi) the Purchaser has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Purchaser has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
(viii) the Purchaser has not mortgaged, pledged or subjected to any Lien, any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Purchaser, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nix) the Purchaser has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Purchaser;
(x) the Purchaser has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Purchaser;
(xi) the Purchaser has not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $100,000 in the actions specified aggregate;
(xii) the Purchaser has not instituted or settled any material legal proceeding; and
(xiii) the Purchaser has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.9.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only Except as contemplated by or in the ordinary course consistent connection with past practice and, except as otherwise this Agreement or set forth in Section 3.9 of on Schedule 4.10, since the Target Disclosure Schedule, Balance Sheet Date:
4.10.1 there has not been:
(a) been any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance, with respect to the property and assets of the Companies or the Subsidiaries having a replacement cost of more than Seven Hundred Fifty Thousand Dollars ($750,000) for any single loss;
(g) 4.10.2 there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target any Company or any direct Subsidiary, or indirect redemptionany repurchase, purchase redemption or other acquisition by Target any Seller or any Company or any Subsidiary of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, any Company or any Subsidiary;
(h) any material labor trouble or material claim of unfair labor practices involving Target; 4.10.3 there has not been any material change by any Company or any Subsidiary in accounting or Tax reporting principles, methods or policies;
4.10.4 no Company and no Subsidiary has entered into any transaction or Contract involving the expenditure of more than Seven Hundred Fifty Thousand Dollars ($750,000) or conducted its business other than in the ordinary course of business consistent with past practice;
4.10.5 no Company and no Subsidiary has made any material loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller other than in the ordinary course of business consistent with past practice;
4.10.6 no Company and no Subsidiary has mortgaged, pledged or subjected to any Lien any asset, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any of its assets for which the aggregate consideration paid or payable in any individual transaction was in excess of Fifty Thousand Dollars ($50,000) (through merger or otherwise), and no Company and no Subsidiary has mortgaged, pledged or subjected to any Lien any asset or sold, assigned, transferred, conveyed, leased or otherwise disposed of any asset in any transaction with Invensys or any Affiliate of Invensys (other than a Company or a Subsidiary) other than on an arms' length basis, except for assets acquired and inventory and obsolete equipment sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
4.10.7 no Company and no Subsidiary has canceled or compromised any debt or claim with a value, individually or in the aggregate, exceeding Five Hundred Thousand Dollars ($500,000) or amended, canceled, terminated, relinquished, waived or released any Contract or right involving the expenditure of more than Five Hundred Thousand Dollars ($500,000);
4.10.8 no Company and no Subsidiary has made or committed to make any capital expenditures or capital additions or betterments in excess of Seven Hundred Fifty Thousand Dollars ($750,000), other than in the ordinary course of business or except as is consistent with the Capital Expenditure Budget;
4.10.9 no Company and no Subsidiary has instituted or settled any Legal Proceeding in which equitable relief was sought or in which claimed damages exceeded Seven Hundred Fifty Thousand Dollars ($750,000);
4.10.10 there has not been any (i) increase in the compensation payable or to become payable by Target any Company or any Subsidiary to any of its officers their respective officers, employees or employees other than normal merit increases in accordance with its usual practicesagents (collectively, or any bonus payment or arrangement made to or with any of such officers or employees;
(i"PERSONNEL") any material change with respect whose annual base salary for services rendered to the officers Company or the Subsidiaries is currently at a rate of Target;
more than $100,000 (j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred except for normal periodic increases in the ordinary course of business thereafterconsistent with past practice), (ii) bonus, incentive compensation, service award or other like benefits granted, made or accrued, contingently or otherwise, for or to the credit of any of the Personnel (except for payments made, or benefits granted, pursuant to existing plans and arrangements described in Schedule 4.16.1 hereto), (iii) employee welfare, pension, retirement, profit-sharing, insurance or similar payments or arrangements made or agreed to by any Company or any Subsidiary for any Personnel (except pursuant to the existing plans and arrangements described in Schedule 4.16.1 hereto) or (iv) new employment (relating to an employee who would be included in the group of employees described in clause (i) above), severance, termination, non-competition, non-solicitation or confidentiality or similar agreements entered into to which any Company or any Subsidiary is a party;
(k) any obligation 4.10.11 no Company and no Subsidiary has failed to operate the business of such Company or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions Subsidiary in the ordinary course of business; or
(nincluding granting any customer or distributor discounts outside the ordinary course) any agreement or understanding whether in writing or otherwiseso as to use reasonable efforts to preserve the business intact, for Target to take any keep available the services of the actions specified Personnel, and to preserve the goodwill of the suppliers, customers and others having business relations with such Company or Subsidiary;
4.10.12 the Companies and the Subsidiaries have not failed to make capital expenditures materially in paragraphs accordance with the capital expenditure budget set forth on Schedule 4.10.12 (the "CAPITAL EXPENDITURE BUDGET");
4.10.13 no Company and no Subsidiary has, on or after July 30, 2002, (a) through extended or maintained credit, arranged for the extension of credit or renewed an extension of credit, in each case, to or for any director or executive officer, or (mb) abovemade any material modification to any term of any extension of credit or any renewal of any such extension of credit to or for any director or executive officer; and
4.10.14 there has not been any Company Material Adverse Effect and no event has occurred or circumstances exist that might reasonably be expected to result in such a Company Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Winfred Berg Licensco Inc)
Absence of Certain Developments. Since Except as set forth on the “Absence of Certain Developments Schedule” attached hereto as Schedule 3.9, since December 31, 2006 Target 2023, (1) each Company Group Member has conducted its business only the Business in the ordinary course consistent with past practice andOrdinary Course of Business, except as otherwise set forth in Section 3.9 and (2) no Company Group Member has taken any of the Target Disclosure Schedule, there has not beenfollowing actions:
(a) (i) borrowed or agreed to borrow any material change in the financial conditionmoney or otherwise incurred any indebtedness for borrowed money or (ii) assumed, properties, assets, liabilities, business guaranteed or operations otherwise become liable or responsible for any indebtedness for borrowed money of Targetany Person other than any Company Group Member;
(b) discharged or satisfied, or agreed to discharge or satisfy, any indebtedness for borrowed money or Lien or paid any material contingent liability incurred by Target as guarantor or otherwise with respect to Liability, other than current Liabilities paid in the obligations Ordinary Course of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.Business;
(c) mortgaged, pledged or subjected to any material mortgage, encumbrance or lien placed on Lien (other than Permitted Liens) any portion of the properties of Target which remains in existence on the date hereof or will remain on the Closing DateCompany Assets;
(d) sold, leased, subleased, assigned or transferred, agreed to sell, lease, sublease, assign or transfer or abandoned or permitted to lapse or expire any of the Company Assets or canceled without fair consideration any material obligation debts or liability of any nature, whether accrued, absolute, contingent claims owing to or otherwise, asserted or unasserted, incurred held by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreementsuch Company Group Member;
(e) sold, assigned, transferred, licensed, abandoned or permitted to lapse any purchasepatents, sale trademarks, trade names, copyrights, Confidential Information or other dispositionmaterial intangible Company Assets or Proprietary Rights or licensed to any other Person any Proprietary Rights, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target in each case other than nonexclusive licenses granted in the ordinary course Ordinary Course of business or as contemplated by this AgreementBusiness;
(f) (i) granted, or agreed to grant, any increase in the compensation payable to or the benefits provided to any of its current or former employees, officers, directors or other individual service providers, in each case other than in the Ordinary Course of Business; (ii) granted, or agreed to grant, any severance or termination pay to any of its current or former employees, officers, directors or other individual service providers; (iii) adopted, established, instituted, amended or terminated any Employee Benefit Plan or made any material determinations or interpretations with respect to any Employee Benefit Plan, in each case other than as required by applicable Law; (iv) accelerated the time of payment, vesting or funding of any compensation or benefits under any Employee Benefit Plan; (v) granted any new awards or benefits under any Employee Benefit Plan or increased the coverage or benefits available under any Employee Benefit Plan other than in the Ordinary Course of Business; (vi) entered into any third-party Contract with respect to any Employee Benefit Plan (including Contracts for the provision of services to such Employee Benefit Plan, including benefits administration) that (A) requires a payment or aggregate payments by such Company Group Member in excess of One Hundred Thousand Dollars ($100,000) and (B) is not terminable at will by such Company Group Member for any reason without advance notice having a term of greater than one (1) year that is not terminable on thirty (30) days’ notice or less; (vii) made, agreed to make, or forgiven any loan to any current or former employee, officer, director or other individual service provider (but excluding loans made in the Ordinary Course of Business through a Company Group Member’s qualified retirement plan or in accordance with the loan policy of such Employee Benefit Plan); (viii) waived or released any confidentiality, noncompetition, nonsolicitation, nondisclosure, nondisparagement or other restrictive covenant obligation of any current or former employees, officers, directors or other individual service providers of such Company Group Member; (ix) hired any employee, officer, director or other individual service provider of any Company Group Member with an annual compensation in excess of Two Hundred Thousand Dollars ($200,000); or (x) implemented or announced any material reduction in labor force or mass layoffs, furlough, reduction to terms and conditions of employment or other event affecting in whole or in part any site of employment, facility, operating unit or employee that would result in Liability of such Company Group Member under the WARN Act or similar applicable Laws;
(g) made, or agreed to make, any capital expenditures or capital commitments in excess of One Hundred Thousand Dollars ($100,000) in one or a series of transactions or commitments therefor;
(h) made, or agreed to make, any loans or advances to or for the benefit of any Person;
(i) suffered any damage, destruction or casualty loss of Target properties or assetsto any material Company Assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafteramended its Constituent Documents;
(k) any obligation issued, transferred, pledged, encumbered, sold or liability incurred by Target to otherwise disposed of any of its officers, directors, shareholders or employees, including any material increases in compensationEquity interests, or granted any loans Options or advances made by Target other rights to purchase any debt or Equity Interests of its officers(or economic benefit or similar right to or derived from the economic benefits and rights occurring to the holders of such Equity Interests) any Company Group Member, directorsor split, shareholders combined or employees, except normal compensation and expense allowances payable to directors, officers or employeessubdivided the Equity Interests of any Company Group Member;
(l) made any change investment in accounting methods or practices of Targetany other Person (other than a Company Group Member);
(m) commenced, threatened, instituted, settled, released, waived or compromised any pending or threatened Proceeding involving (i) payments by any Company Group Member in respect of such Proceeding in excess of One Hundred Thousand Dollars ($100,000) or (ii) any relief other than money damages, which if decided against any Company Group Member would be materially adverse to such Company Group Member, its Company Assets or the Business;
(n) made any material change in any method of accounting or accounting practice used in preparing the Company Statements, except as required by GAAP;
(o) directly or indirectly engaged in any transaction, arrangement or Contract with any director, officer, manager, member, partner, direct or indirect equityholder or other insider or Affiliate of any Seller or Company Group Member, in each case outside of the Ordinary Course of Business or except as described in the Affiliated Transactions Schedule;
(p) merged or consolidated with, or purchased substantially all of the Assets or businesses of, or Equity Interests in, any other Person;
(q) (i) entered into, executed, terminated (other than terminations based on the expiration without any affirmative action by such Company Group Member), materially modified, materially altered, materially amended, extended (outside the Ordinary Course of Business) or canceled or (ii) affirmatively waived, assigned or released any material transaction rights or material claims under, in each case, any Lease or Company Contract, in each case other than employment-related Contracts entered into by Target other than transactions in the ordinary course Ordinary Course of businessBusiness;
(r) made or changed any material Tax election, changed any annual Tax accounting period, adopted or changed any Tax accounting method, filed any amended Tax Return, entered into any closing agreement with a Governmental Authority in respect of Taxes, settled any Tax claim with a Governmental Authority or assessment of Taxes proposed by a Governmental Authority relating to such Company Group Member, surrendered any right to claim a refund of Taxes, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to such Company Group Member;
(s) entered into, modified or extended any CBA or recognized any Contract with a Union;
(t) changed the principal line of business of such Company Group Member;
(u) canceled or terminated any insurance policy naming such Company Group Member as a beneficiary or a loss payable payee unless the same was replaced with one (1) or more insurance policies providing coverage substantially similar in scope and terms;
(v) adopted a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reclassification, distribution, equity split or other reorganization of such Company Group Member;
(w) accelerated the payment of any material accounts receivable or delayed the payment of any material accounts payable, in each case, of such Company Group Member;
(x) made any change to any Company Group Member’s (i) pricing, discount, credit, billing, allowance or return policies with respect to customers or (ii) purchase or payment policies with respect to vendors and suppliers; or
(ny) any agreement or understanding whether committed in writing or otherwise, for Target to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement or as set forth on Schedule 3.6, 2006 Target since the date of the Most Recent Balance Sheet and as of the date hereof:
(a) the Company has conducted its business Business only in the ordinary course of business consistent with past practice and, except as otherwise set forth in Section 3.9 (including with respect to the timing of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations collection of Targetreceivables and payments of current Liabilities);
(b) the Company has not suffered any damage, destruction or casualty loss exceeding $50,000 in the aggregate, whether or not covered by insurance, or experienced any material contingent liability incurred by Target as guarantor or otherwise with respect to changes in the obligations amount and scope of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.insurance coverage;
(c) any material mortgagethere has occurred no fact, encumbrance event or lien placed on any of circumstance which, individually or in the properties of Target which remains in existence on the date hereof aggregate, has had or will remain on the Closing Datehave a Material Adverse Effect;
(d) the Company has used all commercially reasonable efforts to (i) preserve intact the Company’s material assets, current business organizations and material relationships with third parties, (ii) preserve the relationships with customers, employees, suppliers, and others having business dealings with the Business, (iii) maintain in full force and effect with respect to the Company until the Closing substantially the same levels of coverage of insurance with respect to the assets, operations and activities of the Company as are in effect as of the date of this Agreement and (iv) comply in all material respects with all Laws applicable to the Company, and maintain in full force and effect, and comply in all material respects with, all of the Permits, as applicable;
(e) the Company has not amended or authorized any amendment of its Governing Documents or corporate structure;
(f) the Company has not (A) issued, delivered, sold, transferred, granted, pledged, disposed of or otherwise encumbered any equity securities of the Company, or granted any options, calls, warrants or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock, (B) split, combined or reclassified any of the outstanding securities of the Company, or (C) purchased, redeemed or otherwise acquired or offered to acquire (directly or indirectly) or disposed of any securities of the Company (not including the distribution of any Cash not included in the computation of Closing Cash Amount to its equityholders in accordance with the Company’s Governing Documents and applicable Law);
(g) the Company has not adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or merged or consolidated the Company with any other Person;
(h) the Company has not failed to maintain in all material respects its books and records in accordance with GAAP or made any change in annual accounting period or any method of accounting or Tax, pension, actuarial or accounting practice, policy, principle or procedure, except as required by any changes in the GAAP or applicable Law; prepared or filed any Tax Return inconsistent with past practice or, on any Tax Return, took any position, made any election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods;
(i) the Company has not made or changed any election, filed any amended Tax Return, entered into any closing agreement, settled any Tax claim or assessment relating to the Company, surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company, or took any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(j) the Company has not revoked the Company’s election to be taxed as an S corporation within the meaning of Sections 1361 and 1362 of the Code, and the Company not taken or allowed to be taken any action that would result in the termination of the Company’s status as a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code;
(k) the Company has not failed to pay any Taxes as they became due and payable;
(l) the Company has not entered into any agreement with respect to the voting of its capital stock;
(m) the Company has not incurred, authorized or committed to make any capital expenditure (or series of related capital expenditures) that exceeds $50,000 in the aggregate;
(n) the Company has not made any capital investment in, any loan to or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions) either involving more than $50,000 or outside the ordinary course of business consistent with past practice;
(o) the Company has not made any loan (except advances in the ordinary course of business consistent with past practice) to, or made, granted or promised any bonus or any wage or salary increase or made or promised any other change in employment or compensation terms for, or entered into any other transaction with, any employee, officer or director, other than routine wage increases in the ordinary course of business consistent with past practice;
(p) except to the extent required by applicable Law or as contemplated in Section 3.14 herein, entered into, adopted, amended, modified or terminated any pension, retirement, welfare, bonus, profit-sharing, incentive, severance or other plan, contract, or commitment for the benefit of any of the current or former officers, managers or directors or any of its current or former employees of the Company or committed to do any of the foregoing (or took any such action with respect to any other Company Plan);
(q) except to the extent required by applicable Law, took or failed to take any action, the result of which could reasonably be expected to result in any representation and warranty of the Sellers set forth in this Agreement ceasing to be true and correct in any material obligation respect;
(r) the Company has not sold, leased, assigned, transferred, licensed, sublicensed, encumbered or otherwise disposed of any Company Intellectual Property, disclosed any Confidential Information to any Person (other than to the Purchaser and the Purchaser’s representatives, agents (including lenders), attorneys and accountants), or abandoned or permitted to abandon or permitted to lapse any of the Company Intellectual Property (other than patents expiring at the end of their statutory terms);
(s) the Company has not sold, leased, assigned, transferred, licensed, sublicensed, encumbered or otherwise disposed of any tangible asset, except in the ordinary course of business consistent with past practice;
(t) the Company has not changed its cash management practices or canceled any debts owed to or claims held by the Company;
(u) the Company has not mortgaged or encumbered or permitted any of the Company’s assets to become subject to any Liens, other than Permitted Liens;
(v) the Company has not entered into, terminated, modified or amended any Material Contract (other than extensions at the end of a term in the ordinary course of business consistent with past practice, which extensions shall not subject the Company to materially different terms than those to which the Company was subject under the term just ended), or waived any material default under, or released, settled or compromised any material claim against the Company or liability under any Material Contract, or entered into any new contracts, agreements, leases or subleases, except contracts or agreements made in the ordinary course of business consistent with past practice;
(w) the Company has not accelerated the collection of accounts receivable, delayed the purchase of supplies, delayed capital expenditures, repairs or maintenance, or delayed payment of accounts payable or accrued expenses;
(x) the Company has not made any loan or engaged in any transactions with, or entered into any contracts or agreements with, any Affiliates of the Company, except to the extent required by any existing Material Contracts;
(y) the Company has not settled any Action (A) involving amounts due or alleged to be due to or from the Company in an amount, in the aggregate, exceeding $100,000 or would otherwise impose any material restrictions on the business or operations of the Company; or (B) which involves any injunction or the imposition of equitable relief;
(z) the Company has provided the Purchaser with prompt written notice of all ordinary course insurance claims;
(aa) the Company has not failed to maintain in full force and effect material insurance policies covering the Company and its properties, assets and businesses in a form and amount consistent with past practice;
(bb) the Company has not communicated with employees of the Company regarding the compensation, benefits or other treatment that they will receive in connection with the transactions contemplated by this Agreement, other than any such communications which were consistent with prior directives or documentation provided to the Company by Purchaser;
(cc) the Company has not implemented any plant closing or mass layoff that could implicate the WARN Act;
(dd) the Company has not incurred any Indebtedness, or redeemed, repurchased, prepaid, defeased, canceled, incurred or otherwise acquired any Indebtedness, or entered into any contract, agreement or other arrangement to do any of the foregoing or issued or sold any debt securities or warrants or rights to acquire any debt securities of the Company or assumed, guaranteed or endorsed, or otherwise became responsible for, the obligations of any naturePerson for borrowed money, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities except for such Indebtedness incurred in the ordinary course of business and not prohibited by consistent with past practices or under the terms Company’s existing core business revolving credit facility as in effect on the date of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in an aggregate amount not exceeding the ordinary course of business thereafter;maximum amount authorized under that agreement at any time outstanding; and
(kee) the Company has not taken, offered, proposed or authorized any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensationof, or any loans committed or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target agreed to take any of of, the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31June 30, 2006 Target 2002, except as set forth on Schedule 3.12, Adherex has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedulefor general industry and economic conditions, there has not been:
been (a) any material no change in the respective condition (financial conditionor otherwise) of Adherex, properties, or in the assets, liabilities, business or operations prospects of Target;
Adherex that has or is reasonably likely to have an Material Adverse Effect, (b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any no declaration, setting aside or payment of any dividend by Target or other distribution with respect to, or any direct or indirect redemption or acquisition of, any of the making shares in the capital of Adherex, (c) no issuance of any other distribution shares in respect of the capital stock of Target Adherex or any direct or indirect redemption, purchase or other acquisition of any of the capital or other equity securities of Adherex, (d) no waiver of any valuable right of Adherex or cancellation of any material debt or claim held by Target Adherex, (e) no discharge or satisfaction by Adherex of its own capital stock;
any material lien or encumbrance or payment by Adherex of any obligation or liability (fixed or contingent), (f) no material increase in the compensation paid or payable to any officer, director, employee or agent of Adherex that exceeds $50,000 in the aggregate, (g) no material loss, destruction or damage to any property of Adherex, whether or not insured, (h) any no material labor trouble or material claim of unfair labor practices labour dispute involving Target; any Adherex and no material change in the compensation payable or to become payable by Target to any personnel of its officers or employees other than normal merit increases in accordance with its usual practicesAdherex, or any bonus payment or arrangement made to or with any the terms and conditions of such officers or employees;
their employment, (i) no acquisition or disposition of any material change with respect to the officers of Target;
assets (j) or any payment contract or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred arrangement therefor), including any Adherex Intellectual Property Rights, other than in the ordinary course of business thereafter;
(k) Adherex’s business, nor any obligation or liability incurred other transaction by Target to any Adherex otherwise than for fair value in the ordinary course of its officersbusiness, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(lj) any no change in accounting methods or practices of Target;
Adherex, (mk) no loss, or any other material transaction entered into by Target development that is expected to result in a loss, of any significant supplier, customer, distributor or account of Adherex (other than transactions the completion in the ordinary course of business; or
business of specific projects for customers), (nl) no amendment or termination of any contract or agreement to which Adherex is a party or understanding whether in writing by which it is bound, and (m) no commitment (contingent or otherwise, for Target ) to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since Except as set forth on the attached Developments Schedule or as otherwise expressly contemplated herein, since December 31, 2006 Target 1999, Seller has conducted its business only operated the Business in the usual and ordinary course of business consistent with past practice andpractices, and has used its reasonable efforts to preserve the goodwill of its business and relationships with its customers, suppliers, franchisees, employees and other Persons having business relations with Seller including by investing and otherwise engaging in marketing, advertising and other promotional activities at times, in amounts and otherwise consistent with prior practices. Without limiting the generality of the foregoing since December 31, 1999, Seller has not, except as otherwise set forth in Section 3.9 of described on the Target Disclosure Developments Schedule, there has not been:
(a) redeemed or purchased, directly or indirectly, any material change in the financial condition, properties, assets, liabilities, business shares of its capital stock or operations declared or paid any dividends or distributions with respect to any shares of Targetits capital stock or permitted any other withdrawal or made any payment or distribution of funds or other assets to any of its Affiliates;
(b) pledged or subjected to any material contingent liability incurred by Target as guarantor or otherwise Lien any of the Purchased Assets, except for Permitted Liens;
(c) with respect to the obligations Business, sold, assigned or transferred any of others or any cancellation its tangible assets, except in the ordinary course of any material debt or claim owing tobusiness consistent with past practice, or waiver of canceled without fair consideration any material right of, Target.
(c) any material mortgage, encumbrance debts or lien placed on any of the properties of Target which remains in existence on the date hereof claims owing to or will remain on the Closing Dateheld by it;
(d) sold, assigned, licensed, transferred or encumbered any material obligation Proprietary Rights or liability of other intangible assets, or disclosed any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target proprietary confidential information to any Person other than obligations Buyer and liabilities incurred Buyer's agents or to Seller's agents through the course of due diligence or abandoned or knowingly permitted to lapse any Proprietary Rights;
(e) with respect to the Business, made or granted any bonus or any wage or salary increase to any employee or group of employees (except as required by existing contracts or consistent with past practice), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(f) with respect to the Business, suffered any extraordinary losses or waived any right of material value (whether or not in the ordinary course of business or consistent with past practice);
(g) with respect to the Business, made any loans or advances to, or guarantees for the benefit of, any Person;
(h) with respect to the Business, entered into any other transaction not in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Targetconsistent with past practice; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;or
(i) any material change with respect to the officers of Target;
(j) any payment Business, agreed, whether orally or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target writing, to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Grow Biz International Inc)
Absence of Certain Developments. Since December 31Except as listed on Schedule 3.08, 2006 Target has conducted its business only in since the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 Balance Sheet Date and prior to the date of the Target Disclosure Schedule, there has not beenthis Agreement:
(a) the Company has not sold, leased, transferred or assigned any material change of its assets, tangible or intangible, other than for a fair consideration in the financial condition, properties, assets, liabilities, business or operations ordinary course of Targetbusiness;
(b) no Lien has been imposed on any material contingent liability incurred by Target as guarantor or otherwise with respect to asset of the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.Company;
(c) the Company has not made any material mortgage, encumbrance capital expenditure (or lien placed on any series of related capital expenditures) either involving more than $50,000 or outside the properties ordinary course of Target which remains in existence on the date hereof or will remain on the Closing Datebusiness;
(d) the Company has not made any material obligation capital investment in, any loan to or liability any acquisition of the securities or assets of any natureother Person (or series of related capital investments, whether accruedloans and acquisitions) either involving more than $50,000 or outside the ordinary course of Business or acquired (by merger, absoluteexchange, contingent consolidation, acquisition of stock or assets or otherwise) any Person;
(e) the Company has not delayed, asserted postponed or unassertedaccelerated the payment of accounts payable or other liabilities or the receipt of any accounts receivable, incurred by Target other than obligations and liabilities incurred in each case outside the ordinary course of business;
(f) the Company has not canceled, compromised, waived or released any right or claim (or series of related rights or claims) except in the ordinary course of business and business;
(g) except incidental to the sale of products or services, the Company has not prohibited by granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(h) the Company has not entered into any employment or collective bargaining agreement, written or oral, or modified the terms of this any such existing agreement;
(i) the Company has not discharged or satisfied any Lien or paid any liability, other than current liabilities paid in the ordinary course of business;
(j) the Company has not made any change in accounting principles or practices from those utilized in the preparation of the Annual Financial Statements;
(k) the Company has not made or pledged to make any charitable or other capital contribution outside the ordinary course of business; and
(l) the Company has not committed to take any of the actions described in Section 3.08(a)-(k). Except as listed on Schedule 3.08, since the Account Date and prior to the date of the Agreement:
(a) the Company has not entered into any contract (or series of related contracts) either involving more than $50,000 or outside the ordinary course of business;
(b) no Person (including the Company) has accelerated, suspended, terminated, modified or canceled any contract (or series of related contracts) involving more than $50,000 to which the Company is a party or by which it is bound;
(c) other than advances on existing credit facilities, the Company has not issued any note, bond or other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money or capitalized lease obligation;
(d) there has been no change made or authorized in the Organizational Documents of the Company;
(e) any purchasethe Company has not issued, sale sold or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, otherwise disposed of any of the material properties its capital stock or assets equity interests, or granted any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of Target other than in the ordinary course of business or as contemplated by this Agreementits capital stock;
(f) the Company has not declared, set aside or paid any material dividend or made any distribution with respect to its capital stock or equity interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its capital stock or split, combined or reclassified any outstanding shares of its capital stock;
(g) the Company has not experienced any damage, destruction or loss of Target properties or assets, (whether or not covered by insurance;
(g) any declaration, setting aside or payment in excess of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of $50,000 to its own capital stock;property; and
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was Company has not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target committed to take any of the actions specified described in paragraphs Section 3.08(a)-(g). Except as listed on Schedule 3.08, since the Annual Financial Statements Date and prior to the date of the Agreement:
(ai) through the Company has not made any loan to, or entered into any other transaction with, any of its directors, officers or employees outside the ordinary course of business;
(mj) abovethe Company has not adopted, amended, modified or terminated any bonus, profit-sharing, incentive, severance or other plan, contract or commitment for the benefit of any of its directors, officers or employees (or taken any such action with respect to any other Plan); and
(k) the Company has not committed to take any of the actions described in Section 3.08(a)-(b).
Appears in 1 contract
Sources: Purchase Agreement (Nyfix Inc)
Absence of Certain Developments. Since December 31Except as set forth in Section 3.8 of the Disclosure Schedule, 2006 Target since January 10, 2008:
(a) there has not been any Company Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Company Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $5,000 for any single loss or in the aggregate for any related losses;
(c) the Company has not made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or promised to pay, orally or in writing, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any member, shareholder, manager, director, officer, employee, distributor or agent of the Company or the LT Predecessor, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of the Company other than officers or senior managers;
(d) the Company has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by the Company in accounting or Tax reporting principles, methods or policies or any settlement of any Tax controversy;
(f) the Company has not conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bg) the Company has not entered into any material contingent liability incurred by Target as guarantor transaction or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing DateContract;
(dh) any material obligation the Company has not hired employees or liability engaged independent contractors to provide services for clients of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, Company or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target its Subsidiaries other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damageconsistent with, destruction or loss of Target properties or assetsand at a level consistent with, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice;
(i) the Company nor any material change with respect to the officers of Targetits Subsidiaries has breached any Contract or amended any Contract;
(j) the Company nor any payment of its Subsidiaries has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) the Company has not made any loans, advances or discharge capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of a material lien Company or liability the LT Predecessor;
(l) the Company has not mortgaged, pledged or subjected to any Lien any of Target which was not shown on its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Most Recent Balance Sheet Company except for assets acquired or incurred sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Targetconsistent with past practice;
(m) the Company has not discharged or satisfied any other material transaction entered into by Target other than transactions Lien, or paid any obligation or Liability, except in the ordinary course of business; orbusiness consistent with past practice and which, in the aggregate, are not material to the Company;
(n) the Company has not canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past practice and which, in the aggregate, are not material to Company;
(o) the Company has not made or otherwisecommitted to make any capital expenditures or capital additions or improvements in excess of $5,000 individually or in the aggregate, for Target to take except as set forth in Section 3.8(o) of the Disclosure Schedule, or otherwise in the ordinary course of business consistent with past practices;
(p) the Company has not entered into any prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the sales of its services for periods prior to the Closing;
(q) the Company has not amended any of its Organizational Documents;
(r) the Company has not issued any equity securities or any security exercisable or exchangeable for or convertible into equity securities of the Company; and
(s) the Company has not entered into any agreements to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.8 which have not been consummated as of the date hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as contemplated by this Agreement or set forth on Schedule 2.9, 2006 Target since the Most Recent Balance Sheet Date, the Business has been conducted its business only in the ordinary course consistent with past practice Ordinary Course of Business and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) the Company has not (i) amended its Organizational Documents or (ii) issued, sold, granted or otherwise disposed of any material change in the financial condition, properties, assets, liabilities, business or operations of TargetEquity Security;
(b) the Company has not become liable in respect of any material contingent liability incurred by Target as guarantor Guarantee nor has it incurred, assumed or otherwise with become liable in respect to the obligations of others or any cancellation of any material debt Debt in excess of $50,000 or claim owing tomade any loans, advances or waiver capital contributions to or Investments in any Person (except for travel advances in the Ordinary Course of any material right of, Target.Business);
(c) any material mortgagethe Company has not sold, encumbrance leased, licensed, transferred or lien placed on otherwise disposed of any of its Assets, except Inventory in the properties Ordinary Course of Target which remains in existence on the date hereof or will remain on the Closing DateBusiness;
(d) the Company has not permitted any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target its Assets to become subject to an Encumbrance other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreementa Permitted Encumbrance;
(e) the Company has not made or committed to make any purchaseindividual capital expenditure in excess of $50,000 except in accordance with its 2013 capital expenditures budget, sale or other dispositiona true, or any agreement or other arrangement for the purchase, sale or other disposition, correct and complete copy of any of the material properties or assets of Target other than which is contained in the ordinary course of business or as contemplated by this AgreementData Room;
(f) any material damage, destruction or loss the Company has not (i) except for cash distributions to Sellers in respect of Target properties or assets, whether or not covered by insurance;
(g) their respective Shares made any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in with respect of the capital stock of Target to, or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target of, any Equity Security or (ii) entered into, or performed, any transaction with, or for the benefit of, Sellers or any Affiliate of its own capital stockany Seller or any officer, director or employee of the Company or any Subsidiary thereof;
(g) there has been no material loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting the Business or any material Asset;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change other than in the compensation Ordinary Course of Business, the Company has not increased the Compensation payable or paid, whether conditionally or otherwise, to become payable by Target to (i) any employee, consultant, independent contractor or agent, (ii) any officer or manager of its officers such Company or employees other than normal merit increases in accordance with its usual practices, (iii) Sellers or any bonus payment or arrangement made to or with Affiliate of any of such officers or employeesSeller;
(i) the Company has not entered into any material change with respect Contractual Obligation providing for the employment or consultancy of any Person on a full-time, part-time, consulting or other basis other than in the Ordinary Course of Business or otherwise providing Compensation or other benefits to any Person other than in the officers Ordinary Course of TargetBusiness;
(j) the Company has not made any change in its methods of accounting or accounting practices (including with respect to reserves) or its pricing policies, payment or discharge credit practices or failed to pay any creditor any amount owed to such creditor when due or granted any extensions of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred credit, in each case, other than in the ordinary course Ordinary Course of business thereafterBusiness;
(k) the Company has not made, changed or revoked any obligation Tax election, elected or liability incurred by Target to changed any method of its officersaccounting for Tax purposes, directors, shareholders settled any Action in respect of Taxes or employees, including entered into any material increases Contractual Obligation in compensation, or respect of Taxes with any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesGovernmental Authority;
(l) the Company has not terminated or closed any change in accounting methods Facility, business or practices of Targetoperation;
(m) no customer or supplier required to be disclosed on Schedule 2.21 has canceled, terminated or otherwise materially altered its relationship with the Company or notified the Company or any other material transaction entered into by Target other than transactions Seller in writing of any intention to do any of the ordinary course of business; orforegoing or otherwise threatened in writing to cancel, terminate or materially alter its relationship with the Company;
(n) no insurer (i) has denied or disputed the coverage of any agreement claim pending under any Liability Policy or understanding whether (ii) has provided any written notice of cancellation or any other written indication that it plans to cancel any Liability Policy or materially raise the premiums or materially alter the coverage under any Liability Policy;
(o) the Company has not adopted, amended or modified any Employee Plan or increased any benefits or obligations under any Employee Plan;
(p) other than in writing the Ordinary Course of Business, the Company has not written off as uncollectible any Accounts Receivable, modified or otherwisecancelled any material third-party Debt or written up or written down any of its material Assets or revalued its Inventory;
(q) the Company has not failed to pay any material Liability when due;
(r) the Company has not failed to maintain or properly repair, in all material respects, any of its material Assets;
(s) the Company has not acquired or agreed to acquire by merging or consolidating with, or by purchasing all or substantially all of the assets of, or by any other manner, any business of any Person;
(t) except for Target demand letters in respect of delinquent Accounts Receivable, in each case for an amount not in excess of $10,000, the Company has not threatened, commenced or settled any Action;
(u) the Company has not entered into any Contractual Obligation to take do any of the actions specified things referred to elsewhere in paragraphs this Section 2.9; and
(av) through (m) aboveno event or circumstance has occurred which has had a Material Adverse Effect.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure ScheduleUnion Balance Sheet Date, there has not been:
(a) been any Union Material Adverse Effect. Except as expressly contemplated hereby, since the Union Balance Sheet Date, Union has carried on and operated its business in all material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred respects in the ordinary course of business consistent with past practice, and not prohibited by Union has not:
(a) amended or modified its Organizational Documents;
(b) sold, leased, assigned, transferred or purchased any material tangible assets, in each case in a single or related series of transactions, except in the terms ordinary course of this Agreementbusiness;
(c) issued, sold, redeemed or transferred any of its capital stock or other equity securities, securities convertible into its capital stock or other equity securities or warrants, options or other rights to acquire its capital stock or other equity securities, or any bonds or debt securities;
(d) prior to the date hereof, declared or paid any dividend or other distribution of the assets of Union;
(e) made or approved any purchasematerial changes in its employee benefit plans or made any material changes in wages, sale salary, or other dispositioncompensation, including severance, with respect to its current or former officers, directors or executive employees other than increases in base salaries and wages that are consistent with past practices or as required by applicable Law or any Union Plan;
(f) paid, loaned or advanced (other than the payment of compensation and benefits in the ordinary course of business consistent with past practice or the payment, advance or reimbursement of business expenses in the ordinary course of business consistent with past practice or 401(k) plan loans) any amounts to, or sold, transferred or leased any agreement of its assets to, or entered into any other transactions with, any of its Affiliates, or made any loan to, or entered into any other transaction with, any of its directors or officers outside the ordinary course of business or other arrangement for the purchasethan at arm’s length;
(g) except as required by applicable Law, sale adopted or other dispositionmaterially amended any Union Plans;
(h) hired or terminated any officers or employees of Union with fixed annual compensation in excess of $150,000, of any of the material properties or assets of Target with respect to non-officer employees, other than in the ordinary course of business or as contemplated by this Agreementbusiness;
(fi) commenced or settled any Action in which the amount in dispute is in excess of $100,000;
(j) made any material change in accounting principles, methods, procedures or policies, except as required by GAAP;
(k) made, changed or revoked any material Tax election, or settled or compromised any material Tax claim or liabilities, or filed any substantially amended material Tax Return;
(i) authorized, proposed, entered into or agreed to enter into any plan of liquidation, dissolution or other reorganization or (ii) authorized, proposed, entered into or agreed to enter into any merger, consolidation or business combination with any Person;
(m) except in the ordinary course of business, incurred or discharged any Indebtedness;
(n) made capital expenditures or capital additions or betterments in excess of $100,000 in the aggregate;
(o) suffered any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance;
(gp) sold, assigned, transferred, abandoned or allowed to lapse or expire any declarationmaterial Intellectual Property rights or other intangible assets owned, setting aside used or payment licensed by Union in connection with any product of any dividend by Target Union or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target operation of its own capital stockbusiness;
(hq) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target been subject to any claim or threat of its officers infringement, misappropriation or employees other than normal merit increases in accordance with its usual practices, violation by or any bonus payment against Union of Intellectual Property rights of Union or arrangement made to or with any of such officers or employeesa third party;
(ir) materially reduced the amount of any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred insurance coverage provided by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of businessexisting insurance policies; or
(ns) any agreement or understanding whether in writing or otherwise, for Target committed to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31As of the date hereof, 2006 Target has since the Most Recent Balance Sheet Date, except as set forth on Schedule 2.8(a), and as of the Closing Date, since the Most Recent Financials Balance Sheet Date, except as set forth on Schedule 2.8(b); the Businesses have been conducted its business only in the ordinary course consistent with past practice Ordinary Course of Business and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) no Company has (i) amended its Organizational Documents, (ii) admitted any material change in the financial conditionPerson as a member or shareholder, propertiesas applicable, assetsor (iii) issued, liabilitiessold, business granted or operations otherwise disposed of Targetany Equity Security;
(b) no Company has become liable in respect of any material contingent liability incurred by Target as guarantor Guarantee nor has it incurred, assumed or otherwise with become liable in respect to the obligations of others or any cancellation of any material debt Debt or claim owing tomade any loans, advances or waiver capital contributions to or Investments in any Person (except for travel advances in the Ordinary Course of any material right of, Target.Business);
(c) any material mortgageno Company has sold, encumbrance leased, licensed, transferred or lien placed on otherwise disposed of any of its Assets, except Inventory in the properties Ordinary Course of Target which remains in existence on the date hereof or will remain on the Closing DateBusiness;
(d) no Company has permitted any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target its Assets to become subject to an Encumbrance other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreementa Permitted Encumbrance;
(e) no Company has made or committed to make any purchasecapital expenditure except in accordance with the Companies’ annual capital expenditures budget, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, copies of any of the material properties or assets of Target other than which are contained in the ordinary course of business or as contemplated by this AgreementData Room;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
no Company has (gi) made any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in with respect of the capital stock of Target to, or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target of, any Equity Security or (ii) entered into, or performed, any transaction with, or for the benefit of its own capital stockany Member or any Affiliate of any Member;
(g) there has been no material loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting, the Companies, any Business or any material Asset;
(h) no Company has increased the Compensation payable or paid, whether conditionally or otherwise, to (i) any material labor trouble employee, consultant, independent contractor or material claim of unfair labor practices involving Target; any material change agent other than in the compensation payable Ordinary Course of Business, (ii) any manager or to become payable by Target to officer of the Companies or (iii) any Affiliate of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeesthe Companies;
(i) no Company has entered into any material change with respect Contractual Obligation providing for the employment or consultancy of any Person on a full-time, part-time, consulting or other basis other than in the Ordinary Course of Business or otherwise providing Compensation or other benefits to any Person other than in the officers Ordinary Course of TargetBusiness;
(j) no Company has made any change in its methods of accounting or accounting practices (including with respect to reserves) or its pricing policies, payment or discharge credit practices or failed to pay any creditor any amount owed to such creditor when due or granted any extensions of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereaftercredit;
(k) any obligation no Company has made, changed or liability incurred by Target to any of its officers, directors, shareholders or employees, including revoked any material increases Tax election, elected or changed any method of accounting for Tax purposes, settled any Action in compensation, respect of Taxes or entered into any loans or advances made by Target to Contractual Obligation in respect of Taxes with any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesGovernmental Authority;
(l) no Company has terminated or closed any change in accounting methods Facility, business or practices of Targetoperation;
(m) no customer or supplier required to be disclosed on Schedule 2.21 (a) or Schedule 2.21(b) has canceled, terminated or otherwise altered (including any other material transaction entered into by Target other than transactions reduction in the ordinary course rate or amount of business; orsales or purchases or change to the supply or credit terms, as the case may be) or notified a Company of any intention to do any of the foregoing or otherwise threatened in writing to cancel, terminate or materially alter (including any reduction in the rate or amount of sales or purchases, as the case may be) its relationship with any Company;
(n) no insurer (i) has questioned, denied or disputed (or otherwise reserved its rights with respect to) the coverage of any agreement claim pending under any Liability Policy or understanding whether (ii) has provided any notice of cancellation or any other indication that it plans to cancel any Liability Policy or raise the premiums or materially alter the coverage under any Liability Policy;
(o) no Company has adopted any Employee Plan or increased any benefits under any Employee Plan;
(p) no Company has written off as uncollectible any Accounts Receivable, modified or cancelled any material third-party Debt or written up or written down any of its material Assets or revalued its Inventory;
(q) no Company has failed to make a scheduled capital expenditure or investment that exceeds one hundred thousand dollars ($100,000) or failed to pay any trade account payable or any other Liability when due;
(r) no Company has failed to reasonably maintain or properly repair any of its material Assets;
(s) no Company has acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business of any Person or acquired any capital asset or related capital assets with a fair market value in writing excess of One Hundred Thousand Dollars ($100,000);
(t) no Company has threatened, commenced or otherwise, for Target settled any Action; and
(u) no Company has entered into any Contractual Obligation to take do any of the actions specified things referred to elsewhere in paragraphs (a) through (m) abovethis Section 2.8.
Appears in 1 contract
Sources: Merger Agreement (Mastec Inc)
Absence of Certain Developments. Since Except as expressly set ------------------------------- forth on SCHEDULE 3.8 of the Disclosure Schedule, since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been1998:
(a) There has not been any material change Material Adverse Change nor has any event occurred which is likely to result in the financial condition, properties, assets, liabilities, business or operations of Targetany Material Adverse Change;
(b) There has not been any material contingent liability incurred damage, destruction or loss, whether or not covered by Target as guarantor or otherwise insurance, with respect to the obligations property and assets of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.the Company;
(c) There has not been (i) any material mortgagedeclaration, encumbrance setting aside or lien placed on authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or any repurchase, redemption or other acquisition by the Company of any of the properties outstanding shares of Target which remains in existence on capital stock or other securities of, or other ownership interest in, the date hereof Company or will remain on (ii) any amount or asset paid or otherwise distributed to the Closing DateSeller, whether as compensation or otherwise;
(d) The Company has not (i) awarded or paid any material obligation bonuses to (A) the Seller or liability (B) other employees of the Company, (ii) entered into or modified or amended any natureemployment, whether accrueddeferred compensation, absoluteseverance or similar agreement, contingent (iii) increased or otherwiseagreed to increase the compensation payable or to become payable by it to any of the Company's directors, asserted officers, employees, agents or unassertedRepresentatives or (iv) increased or agreed to increase the coverage or benefits available under any severance pay, incurred by Target termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or Representatives (other than obligations and liabilities incurred normal increases in the ordinary course of business consistent with past practice and that in the aggregate have not prohibited by resulted in a material increase in the terms benefits or compensation expense of this Agreementthe Company);
(e) There has not been any purchasechange by the Company in accounting principles, sale methods or other dispositionpolicies;
(f) Except for purchases of raw materials and sales of the Company's products to customers in the ordinary course of business consistent with past practice, the Company has not entered into any Contract requiring payments in excess of $25,000, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target conducted its business other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insuranceconsistent with past practice;
(g) The Company has not (i) incurred or repaid any declarationIndebtedness, setting aside (ii) made any loans, advances or payment of capital contributions to any dividend by Target other Person or (iii) assumed, guaranteed, endorsed or otherwise became liable for the making obligations of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;Person.
(h) The Company has not failed to promptly pay and discharge any material labor trouble or material claim of unfair labor practices involving Target; any material change current liabilities except where disputed in the compensation payable or to become payable good faith by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeesappropriate proceedings;
(i) The Company has not mortgaged, pledged or subjected to any material change with respect to Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the officers Company (other than the sale of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred inventory in the ordinary course of business thereafterconsistent with past practice);
(j) The Company has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company;
(k) The Company has not canceled or compromised any obligation debt or liability incurred by Target claim or amended, canceled, terminated, relinquished, waived or released any (i) Contract to which the Seller or any of its officershis Affiliates is a party or (ii) any other Contract or right except (in the case of this clause (ii)) in the ordinary course of business consistent with past practice and which, directorsin the aggregate, shareholders or employees, including any would not be material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe Company;
(l) The Company has not suffered any change Extraordinary Loss or Extraordinary Losses (as defined in accounting methods or practices Opinion No. 30 of Targetthe Accounting Principles Board of the American Institute of Certified Public Accountants and any amendments thereto);
(m) The Company has not transferred or granted any other material transaction entered into rights under any concessions, leases, licenses, agreements or Intellectual Property used by Target other than transactions the Company in the ordinary course of its business; or;
(n) The Company has not made or committed to make any agreement capital expenditures or understanding whether capital additions or betterments;
(o) The Company has not instituted or settled any Legal Proceeding;
(p) There have not been any amendments or changes in writing the certificate of incorporation or otherwise, for Target the by-laws of the Company;
(q) The Company has not entered into any Contract to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Agreement untrue or incorrect as of the actions specified date when made;
(r) The Company has caused to be done all things necessary to maintain, preserve and renew its corporate existence and all material licenses, authorizations and permits necessary to the conduct of its business; and
(s) The Company has maintained and kept its properties in paragraphs (a) through (m) abovegood repair, working order and condition, normal wear and tear excepted.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, Balance Sheet Date:
(i) there has not been:
(a) been any material adverse change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta material adverse change;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Purchaser having a replacement cost of more than $5,000 for any single loss or $15,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Purchaser or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Purchaser of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Purchaser;
(hiv) the Purchaser has not awarded or paid any material labor trouble bonuses to employees of the Purchaser except to the extent accrued on the Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Purchaser's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Purchaser);
(kv) there has not been any obligation change by the Purchaser in accounting or liability incurred by Target Tax reporting principles, methods or policies;
(vi) the Purchaser has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Purchaser has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Piper Shareholder or any Affiliate of any Piper Shareholder;
(viii) the Purchaser has not mortgaged, pledged or subjected to any Lien, any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Purchaser, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nix) the Purchaser has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Purchaser;
(x) the Purchaser has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Purchaser;
(xi) the Purchaser has not made or committed to make any capital expenditures or capital additions or betterments in excess of $5,000 individually or $15,000 in the actions specified aggregate;
(xii) the Purchaser has not instituted or settled any material legal proceeding; and
(xiii) the Purchaser has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.9.
Appears in 1 contract
Sources: Contribution Agreement (First Surgical Partners Inc.)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in on Section 3.9 3.7 of the Target Company Disclosure Schedule, between the Balance Sheet Date and the date hereof, (a) the business of the Group Companies has been conducted in all material respects in the Ordinary Course of Business, (b) there has not beenbeen any Company Material Adverse Effect, and (c) no Group Company has:
(ai) amended or modified any material change in the financial condition, properties, assets, liabilities, business or operations of TargetGroup Company Organizational Documents;
(bii) issued or sold any material contingent liability incurred by Target as guarantor capital stock or otherwise options, warrants, convertible or exchangeable securities, subscriptions, rights, stock appreciation rights, calls or commitments of any kind with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(hiii) any material labor trouble adopted a plan of liquidation, dissolution, merger, consolidation or material claim of unfair labor practices involving Target; other reorganization;
(iv) made any material change in its accounting methods, principles or practices, other than in a manner consistent with GAAP or made any material change in its tax accounting methods, principles or practices;
(v) materially increased the compensation or benefits payable or to become payable by Target the Group Companies to any of its officers officer, director, manager, stockholder, member, employee, consultant or agent, except for ordinary and customary bonuses and salary increases for employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice and/or contractual requirements;
(ivi) made any material change with respect to the officers of Target;
(j) any payment loan or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target advance to any of its officers, directors, shareholders employees or employeesconsultants (other than in the Ordinary Course of Business) or made any other material loan or advance;
(vii) incurred any new Indebtedness in excess of $500,000 in the aggregate (with respect to the Group Companies, including any material increases taken as a whole) other than in compensation, the Ordinary Course of Business;
(viii) mortgaged or any loans or advances made by Target to pledged any of its officersmaterial assets or properties, directors, shareholders or employees, except normal compensation and expense allowances payable subjected them to directors, officers or employeesany material encumbrance other than in the Ordinary Course of Business;
(lix) sold, transferred, or otherwise disposed of any change part of the assets, properties, capital stock or business of the Group Companies in accounting methods or practices excess of Target$200,000 in the aggregate, other than in the Ordinary Course of Business and except for any tangible asset which is obsolete;
(mx) made any acquisition of any material assets, properties, capital stock or business of any other Person, capital expenditures, or commitments for the same, other than in the Ordinary Course of Business and the total purchase price of which does not exceed $500,000 in the aggregate;
(xi) cancelled, or agreed to cancel, any material transaction Indebtedness or other material obligation owing to the Group Companies other than in the Ordinary Course of Business;
(xii) waived, or agreed to waive, any material rights or claims of the Group Companies other than in the Ordinary Course of Business;
(xiii) declared or made any distribution of property (other than cash) to Sellers with respect to their capital stock, or purchased or redeemed any shares of their capital stock other than in the Ordinary Course of Business;
(xiv) entered into, extended, renewed or terminated any Material Contract, Material Government Contract or Real Property Lease other than in the Ordinary Course of Business;
(xv) suffered any damage, destruction, or casualty loss (whether or not covered by insurance) in excess of $200,000;
(xvi) entered into by Target any material amendment of any Material Contract other than transactions in the ordinary course Ordinary Course of businessBusiness;
(xvii) (A) received a written notice or threat (that was not subsequently withdrawn) of termination or nonrenewal by the other party, with respect to any Material Contract, or (B) failed to renew a Material Contract other than in the Ordinary Course of Business;
(xviii) made any material change in any of its business policies, including advertising, distributing, marketing, pricing, purchasing, personnel, sales, returns, budget, product acquisition, or sale policies other than in the Ordinary Course of Business;
(xix) made any illegal payment or rebates; or
(nxx) any agreement or understanding whether in writing or otherwise, for Target committed to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement or as set forth on Schedule 4.7, 2006 Target since the Purchaser Balance Sheet Date (i) Purchaser has conducted its business operations in all material respects only in the ordinary course consistent with past practice and, except Ordinary Course of Business and in substantially the same manner as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, previously conducted and (ii) there has not beenbeen any event, change, occurrence or circumstance that has had or could reasonably be expected to have a Material Adverse Effect on Purchaser. Without limiting the generality of the foregoing, since the Purchaser Balance Sheet Date:
(a) Purchaser has not entered into any material change transaction or Contract or conducted its business other than in the financial condition, properties, assets, liabilities, business or operations Ordinary Course of TargetBusiness;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing toPurchaser has not sold, leased, transferred, pledged, or waiver assigned any of any material right of, Target.its assets other than inventory in the Ordinary Course of Business;
(c) no Person (including Purchaser) has accelerated, terminated, modified, or canceled any material mortgage, encumbrance Contract (or lien placed on any series of related Contracts) relating to the properties of Target which remains in existence on the date hereof or will remain on the Closing DatePurchaser involving more than $25,000;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and there has not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the assets of Purchaser;
(e) Purchaser has not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $50,000 in the aggregate;
(f) Purchaser has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person;
(g) Purchaser has not issued, created, incurred, assumed, or guaranteed any Indebtedness in an amount exceeding $50,000 in the aggregate;
(h) Purchaser has not instituted or settled any Legal Proceeding;
(i) Purchaser has not failed to promptly pay and discharge current liabilities in the Ordinary Course of Business consistent with past practices, except for liabilities not material in amount that are disputed in good faith by appropriate proceedings;
(j) Purchaser has not mortgaged, pledged or subjected to any Lien (other than Permitted Liens) any of its assets;
(k) there has not been any declaration, setting aside aide or any payment of any dividend by Target dividends, or the making of any other distribution distributions in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving TargetPurchaser; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;and
(l) any change in accounting methods or practices of Target;
(m) any other material transaction Purchaser has not entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement legal obligation, whether written or understanding whether in writing or otherwiseoral, for Target to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December Except as expressly contemplated by ------------------------------- this Agreement or as set forth on Schedule 4.9, since March 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, 1998:
(i) there has not been:
(a) been any material change Material Adverse Change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Change;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss with respect to the property and assets of Target properties the Acquired Companies having a replacement cost of more than $25,000 for any single loss or assets, whether or not covered by insurance$50,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Acquired Companies or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target of its own capital stockstock or other securities of, or other ownership interest in, the Acquired Companies;
(hiv) there has not been any material labor trouble award, announcement or material claim payment of unfair labor practices involving Targetbonuses to employees of the Acquired Companies, except to the extent accrued on the Balance Sheets; none of the Acquired Companies has entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers directors, officers, employees, agents or employees representatives or adopted or agreed to 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 than normal merit increases in accordance with its usual practicesincentive compensation, insurance, medical plan, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Acquired Companies);
(kv) there has not been any obligation change by the Acquired Companies in accounting or liability incurred Tax reporting principles, methods or policies;
(vi) none of the Acquired Companies has entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) none of the Acquired Companies has failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) none of the Acquired Companies has made any loans, advances or capital contributions to, investments in, or guaranteed any obligations of, any Person or paid any fees or expenses to any Stockholder or any Affiliate of the Acquired Companies, in each case, except in the ordinary course consistent with past practice;
(ix) none of the Acquired Companies has mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any of its officers, directors, shareholders or employeesassets, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) any agreement or understanding whether in writing or otherwise, for Target to take any none of the actions specified Acquired Companies has canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in paragraphs the ordinary course of business consistent with past practice and which, in the aggregate, would not cause a Material Adverse Change;
(axi) through the Acquired Companies have not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $50,000 in the aggregate;
(mxii) abovenone of the Acquired Companies has instituted or settled any material Legal Proceeding; and
(xiii) none of the Stockholders or the Acquired Companies has agreed to do anything set forth in this Section 4.9.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly contemplated ------------------------------- by this Agreement or as set forth in Section 3.9 of on Schedule 4.10, since the Target Disclosure Schedule, 1996 Balance Sheet Date:
(i) there has not been:
(a) been any material change Material Adverse Change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Change;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $5,000 for any single loss;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target any Seller or the Company of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Company;
(hiv) The Company has not awarded or paid any material labor trouble bonuses to employees of the Company except to the extent accrued on the 1996 Balance Sheet or material claim of unfair labor practices involving Target; the September Balance Sheet or entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) that is not terminable at will or agreed to increase the compensation payable or to become payable by Target it to any of its the Company's directors, officers or employees or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (iother than in each case in this Section 4.10(iv) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Company);
(kv) there has not been any obligation change by the Company in accounting or liability incurred Tax reporting principles, methods or policies;
(vi) the Company has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Company has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) the Company has not made any loans, advances or capital contributions to, or investments in, any Person;
(ix) the Company has not mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Company, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) the Company has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice;
(xi) the Company has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice;
(xii) the Company has not made or committed to take make any capital expenditures or capital additions or betterments outside of the actions specified ordinary course of business consistent with past practices;
(xiii) the Company has not instituted or settled any material Legal Proceeding; and
(xiv) neither the Sellers nor the Company has agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.10.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement, since the Balance Sheet Date:
(i) there has not been any material adverse change nor has there occurred any event which is reasonably likely to result in a material adverse change;
(fii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Parent having a replacement cost of more than $250,000 for any single loss or $1,000,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Parent or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Parent of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Parent;
(hiv) the Parent has not awarded or paid any material labor trouble bonuses to employees of the Parent except to the extent accrued on the Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Parent's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Parent);
(kv) there has not been any obligation change by the Parent in accounting or liability incurred by Target Tax reporting principles, methods or policies;
(vi) the Parent has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Parent has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
(viii) the Parent has not mortgaged, pledged or subjected to any Lien, any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Parent, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nix) the Parent has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Parent;
(x) the Parent has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Parent;
(xi) the Parent has not made or committed to make any capital expenditures or capital additions or betterments in excess of $250,000 individually or $1,000,000 in the actions specified aggregate;
(xii) the Parent has not instituted or settled any material legal proceeding; and
(xiii) the Parent has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 4.9.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement, 2006 Target has conducted its business only in since the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not beenCompany Balance Sheet Date:
(a) there has not been any material change Material Adverse Effect nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Effect;
(b) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $25,000 for any single loss or $100,000 for all such losses;
(gc) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Company of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Company;
(hd) the Company has not awarded or paid any material labor trouble bonuses to employees of the Company except to the extent accrued on the Company Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Company's directors, officers, employees, agents or employees representatives or agreed to 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 than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Company);
(e) there has not been any change by the Company in accounting or Tax reporting principles, methods or policies;
(f) the Company has not entered into any transaction or Contract other than in the ordinary course consistent with past practice;
(g) the Company has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
(h) the Company has not mortgaged, pledged or subjected to any Lien, any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(i) the Company has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, are not material to the Company;
(j) the Company has not canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, is not material to the Company;
(k) the Company has not made or committed to make any obligation capital expenditures or liability incurred by Target to any capital additions or improvements in excess of its officers, directors, shareholders $25,000 individually or employees, including any material increases $100,000 in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe aggregate;
(l) the Company has not instituted or settled any change in accounting methods or practices of Target;material legal proceeding; and
(m) any other material transaction entered into by Target other than transactions the Company has not agreed to do anything set forth in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) abovethis Section 3.8.
Appears in 1 contract
Sources: Share Exchange Agreement (Global Boatworks Holdings, Inc.)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 date of the Target Disclosure ScheduleLatest Balance Sheet and through the date of this Agreement, there has occurred (i) no fact, event, circumstance, effect or change which has had or would be reasonably expected to have a Material Adverse Effect or (ii) any loss, destruction, damage or eminent domain taking (in each case, whether or not beeninsured) affecting the Company Group or its property or assets in excess of $50,000 in the aggregate. Except as set forth on Section 6.6 of the Disclosure Schedules, since the date of the Latest Balance Sheet, neither the Company Group nor any of its Subsidiaries has:
(a) engaged in any material change transaction that was not in the financial condition, properties, assets, liabilities, business or operations Ordinary Course of TargetBusiness;
(b) made any change in its accounting or tax methods, principles or practices except as required by GAAP or by any Law;
(c) declared or paid any non-cash dividend;
(i) entered into any employment, deferred compensation, severance or similar agreement except any employment agreement providing compensation of less than $125,000 per annum; (ii) provided or agreed to provide any material contingent liability incurred increase in the compensation payable, or to become payable, by Target as guarantor the Company Group or otherwise any of its Subsidiaries to any of its employees, directors, managers or officers; or (iii) provided or agreed to provide any new benefits or increase in the coverage or benefits available under any Benefit Plan for its employees, agents or representatives, other than, with respect to the obligations of others immediately preceding clauses (ii) and (iii), increases, payments or provisions which are made pursuant to a pre-existing contractual obligation or are required by Law or any cancellation applicable collective bargaining agreements of any material debt the Company Group or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains its Subsidiaries or are made in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations connection with annual reviews and liabilities incurred in the ordinary course of business are consistent with past practice and not prohibited by the terms of this Agreementexperience;
(e) any purchase, sale issued or other dispositionsold, or entered into any agreement or other arrangement Contract for the purchase, sale issuance or other dispositionsale, of any shares, or securities convertible into or exercisable for shares, in the capital stock of the material properties Company Group or assets any of Target other than in the ordinary course of business or as contemplated by this Agreementits Subsidiaries;
(f) granted any Encumbrance on or over any material damage, destruction or loss of Target properties property or assets, whether or not covered by insuranceother than Permitted Encumbrances;
(g) any declarationamended its constituent documents, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase by-laws or other acquisition by Target of its own capital stockorganizational documents;
(h) any material labor trouble adopted a plan or material claim agreement of unfair labor practices involving Target; any material change in the compensation payable liquidation, dissolution, restructuring, amalgamation, merger, consolidation, restructuring, recapitalization or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeesreorganization;
(i) issued any material change with respect to note, bond or other debt security or incurred or guaranteed any Indebtedness, other than in the officers Ordinary Course of TargetBusiness;
(j) entered into or consummated any payment transaction involving the acquisition of the business, shares, assets or discharge other properties of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred any other Person, other than in the ordinary course Ordinary Course of business thereafterBusiness;
(k) any obligation sold, leased, licensed or liability incurred by Target to any otherwise disposed of its officers, directors, shareholders or employees, including any material increases amount of assets or property for consideration in compensationexcess of $50,000, or any loans or advances made by Target other than to any customers of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe Business in the Ordinary Course of Business;
(l) changed in any change in accounting methods material respect, terminated or practices of Targetdiscontinued any operations;
(m) except as may be required as a result of a change in Law or in GAAP, written up or written down any other material transaction entered into assets;
(n) without limiting the generality of the foregoing, taken any action that would have been prohibited by Target other than transactions in Section 4.3 if it had been taken after the ordinary course of businessdate hereof and prior to the Closing Date; or
(no) entered into any agreement or understanding whether in writing or otherwise, for Target Contract to take do any of the actions specified things referred to elsewhere in paragraphs (a) through (m) abovethis Section 6.6.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as disclosed in the Company Financial Statements or as otherwise contemplated by this Agreement, 2006 Target since the Latest Company Balance Sheet, the Company has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, and there has not been:
occurred (a) any material change in event having a Material Adverse Effect on the financial conditionCompany or likely to have a Material Adverse Effect on the Surviving Company, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor event that would reasonably be expected to prevent or otherwise with respect materially delay the performance of the Company’s obligations pursuant to the obligations of others or any cancellation of any material debt or claim owing tothis Agreement, or waiver of any material right of, Target.
(c) any material mortgagechange by the Company in its accounting methods, encumbrance principles or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
practices, (d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the shares of capital stock of Target the Company or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
any of the Company’s securities, (he) any material labor trouble increase in the compensation or material claim benefits or establishment of unfair labor practices involving Target; any material change bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, option (including without limitation the granting of options, appreciation rights, performance awards or restricted membership interest awards), membership-interest purchase or other employee benefit plan of the Company, or any other increase in the compensation payable or to become payable by Target to any employees, managers, officers, consultants, directors or governors of its officers or employees the Company, (f) other than normal merit increases in accordance with its usual practicesissuances of options pursuant to duly adopted option plans, any issuance, grant or sale of any stock, options, warrants, notes, bonds or other securities, or entry into any bonus payment agreement with respect thereto by the Company, (g) any amendment to the Company’s articles of organization, member control agreement or arrangement made to bylaws, (h) other than in the ordinary course of business consistent with past practice, any (1) purchase, sale, assignment or with transfer of any material assets by the Company, (2) mortgage, pledge or existence of any lien, encumbrance or charge on any material assets or properties, tangible or intangible, of the Company, except for liens for taxes not yet due and such officers other liens, encumbrances or employees;
charges which, individually or in the aggregate, do not have a Material Adverse Effect on the Company and would not have a Material Adverse Effect on the Surviving Company, or (3) cancellation, compromise, release or waiver by the Company of any rights of material value or any material debts or claims, (i) any incurrence by the Company of any material change with respect to the officers of Target;
liability (j) any payment absolute or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or contingent), except for current liabilities and obligations incurred in the ordinary course of business thereafter;
consistent with past practice, (j) damage, destruction or similar loss, whether or not covered by insurance, materially affecting the business or properties of the Company, (k) entry into any obligation agreement, contract, lease or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target license other than transactions in the ordinary course of business; or
business consistent with past practice, (l) any acceleration, termination, modification or cancellation of any agreement, contract, lease or license to which the Company is a party or by which it is bound, (m) entry by the Company into any loan or other transaction with any officers, managers, directors, governors or employees of the Company, (n) entry by the Company into any transaction of a material nature other than in the ordinary course of business consistent with past practice, or (o) any negotiation or agreement or understanding whether in writing or otherwise, for Target by the Company to take do any of the actions specified things described in paragraphs the preceding clauses (a) through (m) aboveo).
Appears in 1 contract
Sources: Merger Agreement (Webdigs Inc)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly ------------------------------- required by this Agreement or as set forth in Section 3.9 of on Schedule 4.10, since the Target Disclosure Schedule, there has not beenBalance Sheet Date:
(a) there has not been any material change in the financial condition, properties, assets, liabilities, business or operations of TargetMaterial Adverse Change;
(b) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of either Company having a replacement cost of more than $100,000 for all such losses;
(gc) except as required by Section 1.3 with respect to the Excluded Assets, there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock or equity securities of Target either Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target either Company of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, either Company;
(hd) neither Company has awarded or paid any material labor trouble bonuses to employees of either Company with respect to the fiscal year ended December 31, 1995, or material claim of unfair labor practices involving Target; any material change in entered into, or increased or agreed to increase the compensation payable or to become payable by Target to it or the coverage or benefits available under, any of its officers employment agreement, deferred compensation agreement, severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or employees other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers either Company's directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Companies taken as a whole);
(e) there has not been any change by either Company in accounting or Tax reporting principles, methods or policies;
(f) neither Company has entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(g) neither Company has failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(h) neither Company has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
(i) neither Company has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(j) neither Company has discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Companies taken as a whole;
(k) neither Company has canceled or compromised any obligation debt or liability incurred by Target claim or amended, canceled, terminated, relinquished, waived or re- leased any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe Companies taken as a whole;
(l) neither Company has committed to make any change capital expenditures or capital additions or betterments in accounting methods excess of $10,000 individually or practices of Target$25,000 in the aggregate;
(m) any other material transaction neither Company has entered into by Target other than transactions in the ordinary course any transaction, arrangement or agreement with a Seller or any of business; orits or any Seller's Affiliates (including, without limitation, Brimhall or any of his Affiliates);
(n) ▇▇▇▇her Company has instituted or settled any agreement material Legal Proceeding; and
(o) none of the Sellers or understanding whether in writing or otherwise, for Target any of the Companies has agreed to take any of the actions specified set forth in paragraphs (a) through (m) abovethis Section 4.10.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 Schedule 4.4, since the date of the Unaudited Financials, no Seller, as it relates to the Target Disclosure ScheduleBusiness, there has not beenor Newly-Formed LLC has:
(a) issued any material change in equity securities, any profits interests, or any securities exchangeable for or convertible into any equity securities or profits interests, other than pursuant to the financial condition, properties, assets, liabilities, business or operations of TargetContribution Agreements;
(b) borrowed any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing toamounts, or waiver of entered into any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target other liabilities which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred are not in the ordinary course of business and not prohibited by the terms of this Agreementbusiness, consistent with past practice;
(ec) any purchasesold, sale assigned or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of transferred any of its assets other than in the material properties ordinary course of business, consistent with past practices, other than pursuant to the Contribution Agreements;
(i) compromised any debt or assets of Target Claim other than in the ordinary course of business or as contemplated by this Agreement;
consistent with past practices; (fii) intentionally waived any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees rights other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafterconsistent with past practices; (iii) suffered any material theft, destruction, damage or casualty loss; (iv) intentionally waived, canceled or released any right, Claim or Accounts Receivable other than in the ordinary course of business consistent with past practices; and (v) suffered any extraordinary losses;
(ke) authorized any obligation material increase in the compensation of such Seller’s or liability incurred by Target Newly-Formed LLC’s employees (including any such increase pursuant to any of its officersbonus, directorspension, shareholders profit sharing or employeesother plan or commitment), including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business, consistent with past practice (such as pursuant to such Seller’s or Newly-Formed LLC’s customary annual salary and bonus reviews);
(f) made any change in any method of accounting or accounting practice that has had a Material Adverse Effect;
(g) accepted any purchase order or quotation, arrangement, or understanding for future sale of the products or services of such Seller or Newly-Formed LLC, other than in the ordinary course of business, consistent with past practice;
(h) incurred any liabilities or obligations (absolute, accrued, contingent or otherwise) except in the ordinary course of business and consistent with past practice, or experienced any change in any assumptions underlying or methods of calculating, any bad debt, contingency or other reserves that had a Material Adverse Effect;
(i) written down or written up the value of any inventory, increased inventory levels in excess of historical levels for comparable periods or written off as uncollectible any notes or accounts receivable, except, in each case, in the ordinary course of business consistent with past practice;
(j) made any single capital expenditure or commitment in excess of $75,000 for additions to property, plant, equipment or intangible capital assets or made capital expenditures or commitments in excess of $75,000 in the aggregate for additions to property, plant, equipment or intangible capital assets;
(k) made any material change in the manner in which products or services have been performed or marketed or any other material change to the Target Business conducted by such Seller or Newly-Formed LLC;
(l) had any material labor dispute or received notice of any material grievance;
(m) suffered any Material Adverse Change in its financial condition, assets, liabilities (absolute, accrued, contingent or otherwise), reserves, business or operations;
(n) granted any license or sublicense of any rights under, or with respect to, any Intellectual Property Right;
(o) received any resignation of any management level key employee of such Seller who would otherwise have been employed by one of the Newly-Formed LLC’s after the Closing; or
(np) any agreement or understanding agreed, whether in writing or otherwise, for Target to take any of the actions specified action described in paragraphs (a) through (m) abovethis Section 4.4.
Appears in 1 contract
Sources: Master Acquisition Agreement (Chardan 2008 China Acquisition Corp.)
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement, 2006 Target has conducted its business only in since the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not beenBalance Sheet Date:
(a) there has not been any material change Purchaser Material Adverse Effect nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Purchaser Material Adverse Effect;
(b) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of Purchaser having a replacement cost of more than $25,000 for any single loss or $100,000 for all such losses;
(gc) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target Purchaser or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target Purchaser of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, Purchaser;
(hd) Purchaser has not (i) awarded or paid any material labor trouble bonuses to any of its employees Purchaser except to the extent accrued on the Balance Sheet; (ii) entered into any employment, deferred compensation, severance or material claim of unfair labor practices involving Targetsimilar agreement (nor amended any such agreement); any material change in (iii) agreed to increase the compensation payable or to become payable by Target it to any of its officers Purchaser's directors, officers, employees, agents or employees representatives; or (iv) agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation upon disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of Purchaser);
(e) there has not been any change by Purchaser in its accounting or Tax reporting principles, methods or policies;
(f) Purchaser has not entered into any transaction or Contract other than in the ordinary course consistent with past practice;
(g) Purchaser has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any of its Affiliate;
(h) Purchaser has not mortgaged, pledged or subjected to any Lien, any of its capital stock or assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any of its assets Purchaser, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(i) Purchaser has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to Purchaser;
(j) Purchaser has not canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to Purchaser;
(k) Purchaser has not made or committed to make any obligation capital expenditures or liability incurred by Target to any capital additions or improvements in excess of its officers, directors, shareholders $25,000 individually or employees, including any material increases $100,000 in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe aggregate;
(l) Purchaser has not instituted or settled any change in accounting methods or practices of Target;
material legal proceeding (m) any Purchaser has not amended its charter, by-laws or other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) above.organizational documents;
Appears in 1 contract
Sources: Share Exchange Agreement (Global Boatworks Holdings, Inc.)
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement, 2006 Target since the date of the Financial Statements, Seller has conducted its business only in the ordinary course consistent with past practice andOrdinary Course of Business including, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not beenwithout limitation:
(a) any material change no event or events have occurred, and no circumstance has occurred, that, individually or in the financial conditionaggregate, properties, assets, liabilities, business or operations of Targetcould reasonably be expected to have a Material Adverse Effect;
(b) any material contingent liability incurred by Target as guarantor Seller has not sold, transferred or otherwise with respect to the obligations of others or any cancellation disposed of any material debt Purchased Assets, except for dispositions in the Ordinary Course of Business, and has not suffered any theft, damage, removal, destruction or claim owing to, or waiver casualty loss of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or Purchased Assets not covered by insurance;
(gc) Seller has not changed in any declaration, setting aside or payment of material respect any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stockaccounting methods, principles or practices;
(hd) any material labor trouble or material claim of unfair labor practices involving Target; any material change Seller has operated the Systems only in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases usual, regular and ordinary course and in accordance material compliance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeesall applicable Legal Requirements;
(ie) Seller has not entered into any material change with respect settlement of pending or threatened litigation other than any settlement that is not reasonably likely to the officers of Targethave a Material Adverse Effect;
(jf) Seller has not adopted, amended or entered into any payment employment, consulting, retention, change-in-control, collective bargaining, bonus or discharge other cash incentive compensation, deferred compensation, stock option or other equity incentive compensation, health or other welfare benefit, pension, profit sharing, retirement, severance, vacation or other employment or compensation plan, policy, agreement, arrangement or trust for the benefit of a material lien any director, officer, employee, agent, consultant or liability Affiliate of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;Seller; and
(kg) any obligation Seller has not mortgaged, pledged or liability incurred by Target otherwise subjected to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take Encumbrance any of the actions specified in paragraphs (a) through (m) abovePurchased Assets, whether tangible or intangible, except for Permitted Encumbrances.
Appears in 1 contract
Sources: Asset Purchase Agreement (Northland Cable Properties Seven Limited Partnership)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target Except as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement;, as set forth in Schedule 3.22, between June 30, 1999 and the date hereof:
(fi) [intentionally omitted]
(ii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $25,000 for any single loss or $50,000 for all such losses;
(giii) there has not been any grant of any stock option or right to purchase shares of the stock of the Company;
(iv) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Company;
(hv) except pursuant to the Retention Plan, and except for obligations expressly assumed by Seller under Section 6.8, the Company has not awarded or paid any material labor trouble bonuses to employees of the Company, or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Company's directors, officers, employees, agents or employees other than normal merit increases in accordance with its usual practicesrepresentatives, or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to to, for or with any such directors, officers, employees, agents or representatives (other than normal increases in the Ordinary Course and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of such officers or employeesthe Company);
(ivi) there has not been any material change with respect to by the officers of TargetCompany in accounting or Tax reporting principles, methods or policies;
(jvii) the Company has not entered into any payment transaction or discharge of a material lien contract or liability of Target which was not shown on the Most Recent Balance Sheet or incurred conducted its business other than in the ordinary course of business thereafterOrdinary Course;
(kviii) the Company has not failed to pay and discharge promptly current liabilities except where disputed in good faith by appropriate proceedings;
(ix) the Company has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company (other than the payment of trade payables in the Ordinary Course);
(x) the Company has not mortgaged, pledged or subjected to any Encumbrance any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any of its assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the Ordinary Course;
(xi) the Company has not discharged or satisfied any Encumbrance, or paid any obligation or liability incurred by Target to any of its officers, directors, shareholders (fixed or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employeescontingent), except normal compensation in the Ordinary Course and expense allowances payable which, in the aggregate, would not be material to directors, officers or employeesthe Company;
(lxii) the Company has not cancelled or compromised any change debt or claim or amended, canceled, terminated, relinquished, waived or released any contract or right except in accounting methods or practices of Targetthe Ordinary Course and which, in the aggregate, would not be material to the Company;
(mxiii) the Company has not made or committed to make any other material transaction entered into by Target other than transactions capital expenditures or capital additions or betterments in the ordinary course excess of business; or$100,000 individually;
(nxiv) the Company has not instituted or settled any agreement material litigation, suit, claim, action, proceeding or understanding whether investigation of any kind; and
(xv) the Company has not agreed to do anything set forth in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) abovethis Section 3.22.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 on Schedule 3.09, as expressly contemplated by this Agreement or as required pursuant to the terms of the Target Disclosure Schedulethis Agreement, since June 30, 2016, there has not been, with respect Holdings or the Company, any:
(a) any material change event or circumstance, individually or in the financial conditionaggregate, properties, assets, liabilities, business that has had or operations of Targetwould reasonably be expected to result in a Material Adverse Effect;
(b) any material contingent liability incurred by Target as guarantor employee layoffs that could, either alone or otherwise in combination with respect to other layoffs, implicate the obligations Worker Adjustment and Retraining Notification Act of others 1988, or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.similar Law;
(c) increase in the base compensation or wages of, or otherwise any material mortgagechange in the employment or retention terms for, encumbrance or lien placed on payment of any discretionary bonus or other discretionary cash or in kind award to, any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Dateits respective employees;
(d) (A) adoption or entering into, or amendment, modification or termination of, any material obligation bonus, profit-sharing, incentive, severance, or liability other Employee Plan, any employment-related Contract or compensation arrangement, or any collective-bargaining agreement, or (B) establishment or modification of any nature(I) targets, whether accruedgoals, absolutepools, contingent or otherwisesimilar provisions under any Employee Plan, asserted employment-related Contract or unassertedother employee compensation arrangement or (II) salary ranges, incurred by Target compensation increase guidelines, or similar provision with respect to any Employee Plan, employment-related Contract or other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;employee compensation arrangement; 10
(e) change in Tax elections, any purchasesettlement or compromise with respect to any Tax liability of the Company or Holdings, sale any amendment of any Tax Return relating to the Company or other disposition, Holdings or any agreement to enter into any closing or other arrangement for similar agreement with respect to Taxes of the purchase, Company or Holdings;
(f) sale or other disposition, transfer of any material portion of assets reflected on the material properties Latest Balance Sheet, except for sales or transfers of assets of Target other than in the ordinary course of business or as contemplated by this Agreementsales or transfers of assets not needed in the operation of the Business;
(fg) material casualty or damage to, or any material damageinterruption in use of, destruction any material assets or loss of Target properties or assets, property (whether or not covered by insurance;
(g) any declaration), setting aside or payment on account of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemptionfire, purchase flood, riot, strike or other acquisition by Target hazard or act of its own capital stockGod;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable cash management policies or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, accounting methods, principles or any bonus payment practices, except as required by a change in GAAP or arrangement made to or with any of such officers or employeesapplicable Law;
(i) settlement or compromise, or agreement to settle or compromise, any material change with respect to the officers claim or proceeding, other than settlements and compromises involving solely money damages not in excess of Target$250,000;
(j) incurrence, authorization of or commitment to make any payment capital expenditures (or discharge series of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred related capital expenditures) that exceed $250,000 in the ordinary course of business thereafteraggregate;
(k) any obligation or liability incurred by Target to any material change in the pricing policies and, other than the sale of its officersthe Company, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any business strategy of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesthe Company;
(l) formation of any change Subsidiary or acquisition of any equity interest or other interest in accounting methods or practices of Targetany other entity;
(m) incurrence of any Indebtedness;
(n) loan, advance or capital contribution to any other material transaction entered into by Target Person (other than transactions in the ordinary course pursuant to routine expense advances made to an employee);
(o) amendment to or termination of businessany Material Contract;
(p) imposition of any Encumbrance upon any assets, other than Permitted Liens;
(q) cancellation of any debts or claims or termination or waiver of any material rights; or
(nr) adoption of any agreement plan of merger, consolidation, reorganization, liquidation or understanding whether dissolution or filing of any petition in writing bankruptcy, in each case under any provisions of federal or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) abovestate bankruptcy Law.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement, as set forth in the attached disclosure schedules of the Buyer (the "Buyer Disclosure Schedules") or as set forth in the Commission Documents, since June 30, 2005:
(i) there has not been any material adverse change in the business, assets or financial condition of the Buyer nor has there occurred any event which is reasonably likely to result in a material adverse change in the business, assets or financial condition of the Buyer;
(fii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Buyer having a replacement cost of more than $25,000 for any single loss or $50,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Buyer or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Buyer of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Buyer;
(hiv) the Buyer has not awarded or paid any material labor trouble bonuses to employees of the Buyer or material claim of unfair labor practices involving Target; any material change in agreed to increase the compensation payable or to become payable by Target it to any of its officers the Buyer's directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Buyer);
(kv) there has not been any obligation change by the Buyer in accounting or liability incurred tax reporting principles, methods or policies;
(vi) the Buyer has not entered into any transaction or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Buyer has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) the Buyer has not made any loans, advances or capital contributions to, or investments in, any person or entity;
(ix) the Buyer has not mortgaged, pledged or subjected to any lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Buyer, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) the Buyer has not discharged or satisfied any agreement lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Buyer;
(xi) the Buyer has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Buyer;
(xii) the Buyer has not made or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $40,000 in the actions specified aggregate;
(xiii) the Buyer has instituted or settled any material legal proceeding; and (xiv) the Buyer has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 2(j).
Appears in 1 contract
Absence of Certain Developments. Since the Balance Sheet Date (and, with respect to clauses (a), (e), (f) and (p), December 31, 2006 Target 2003):
(a) there has not been any Seller Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Seller Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of the Company;
(c) no Seller has made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of the Company, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of the Company other than officers or senior managers;
(d) no Seller has entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by any Seller in accounting or Tax reporting principles, methods or policies;
(f) no Seller has conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bg) no Seller has entered into (1) any material contingent liability incurred by Target as guarantor Material Contract that is not an Included Contract or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c2) any other material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Datetransaction;
(dh) any material obligation no Seller has hired employees or liability engaged independent contractors to provide services for clients of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target Sellers other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damageconsistent with, destruction or loss of Target properties or assetsand at a level consistent with, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice;
(i) no Seller has materially breached any material change with respect to the officers of TargetIncluded Contract or materially amended any Included Contract;
(j) no Seller has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) no Seller has made any payment loans, advances or discharge capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred such Seller other than intercompany transactions in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesconsistent with past practice;
(l) no Seller has mortgaged, pledged or subjected to any change Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of such Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in accounting methods or practices the ordinary course of Targetbusiness consistent with past practice;
(m) no Seller has discharged or satisfied any other material transaction entered into by Target other than transactions Lien, or paid any obligation or Liability, except in the ordinary course of business; orbusiness consistent with past practice and which, in the aggregate with respect to all Sellers, would not be material to the Company;
(n) no Seller has canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past practice and which, in the aggregate with respect to all Sellers, would not be material to the Company;
(o) no Seller has made or otherwise, for Target committed to take make any capital expenditures or capital additions or improvements in excess of $25,000 individually or $50,000 in the aggregate with respect to all Sellers;
(p) no Seller has entered into any prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the actions specified sales of its services for periods prior to any Closing hereunder;
(q) no Seller has amended any of its Organizational Documents;
(r) no Seller has issues any shares of its capital stock or any security exercisable or exchangeable for or convertible into shares of capital stock of any Seller; and
(s) no Seller has agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 3.8.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2006 Target the Company has conducted its business only operated in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any all material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred respects in the ordinary course of business consistent with past practice, and not prohibited by the terms of this Agreement;
there has been no: (ea) any purchaseevent, sale circumstance or other dispositioncondition, which has had, or any agreement or other arrangement for the purchasewould reasonably be expected to have, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
a Material Adverse Effect; (fb) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble redemption or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change distribution with respect to the officers shares of Target;
the Company; (c) issuance of shares or options, warrants or rights to acquire shares of the Company; (d) loss, destruction or damage in excess of $50,000 to any Asset of the Company, whether or not insured; (e) incurrence, guarantee, assumption, acceleration or prepayment of any Indebtedness or the refunding of any such Indebtedness by the Company; (f) entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any such contract or agreement; (g) granted any increase in the base compensation of any of its directors, officers, or employees outside the ordinary course of business; (h) adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other benefit plan); (i) made any other change in employment terms for any of its directors, officers, or employees outside the ordinary course of business; (j) waiver of any payment right of the Company with a value in excess of $50,000, or discharge settlement or release of a material lien any Proceeding or liability Claim; (k) loan, advance or extension of Target which was not shown on credit by the Most Recent Balance Sheet or incurred Company, except for advances for reimbursable travel expenses made in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensationconsistent with past practice, or capital contribution to or investment in any loans or advances made Person by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
the Company; (l) acquisition, disposition, lease, license or transfer of any change in accounting methods Asset of the Company involving more than $50,000 (or practices of Target;
(m) any Contract therefor), or any other material transaction entered into by Target the Company other than transactions for fair value and in the ordinary course of businessbusiness consistent with past practice; or
(m) material capital expenditure outside of the ordinary course of business consistent with past practice; (n) (i) sale, license, sublicense, assignment, abandonment, allowance to lapse, dedication to the public domain, pledge, encumber, disposal of or transfer of any Owned Intellectual Property, other than non-exclusive licenses granted in the ordinary course of business consistent with past practice, or (ii) disclosure of any trade secrets or proprietary Source Code to a third party, other than pursuant to a valid and binding confidentiality agreement or understanding whether other binding obligation of confidentiality the Company entered into in writing the ordinary course of business consistent with past practice; (o) Lien created by the Company, with respect to any of its properties or otherwiseAssets, except for Target Permitted Liens; (p) acceleration, termination, modification or cancellation of any Contract (or series of related Contracts) involving more than $50,000 to which the Company is a party or by which the Company is bound and, to the Knowledge of the Sellers, no Person has notified the Company that it intends to take any such action; (q) change in accounting methods, principles or practices used in preparing the Financial Statements or to the working capital policies applicable to the Company, except as required by GAAP; (r) material write-down or write-up of the actions specified in paragraphs value of any Asset of the Company, or write-off of any accounts receivable or notes receivable or any portion thereof; or (as) through (m) abovecommitment on behalf of the Company to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on Schedule 3.8, 2006 Target since the Balance Sheet Date, the Company has conducted its business only in the ordinary course consistent with past practice and, in all material respects and except as otherwise set forth in Section 3.9 of the Target Disclosure Schedulefor general industry and economic conditions and transactions expressly contemplated by this Agreement, there has not been:
(a) any no material change in the condition (financial condition, properties, or otherwise) of the Company or in the assets, liabilitiesliabilities or Business, business or operations of Targettaken as a whole;
(b) no declaration, setting aside or payment of any non-cash dividend or other non-cash distribution with respect to, or any direct or indirect redemption or acquisition of, any of the equity interests of the Company;
(c) no waiver of any material right of the Company or cancellation of any material debt or claim held by the Company;
(d) no increase in the compensation paid or payable or employee benefits provided to any officer, employee or agent of the Company other than in the ordinary course of business;
(e) no material loss, destruction or damage to any property of the Company, whether or not insured;
(f) no entry into or agreement to enter into a collective bargaining agreement or similar labor contract, no labor dispute involving the Company and no material change in the personnel of the Company or the terms and conditions of their employment, other than in the ordinary course of business;
(g) no adoption, amendment or modification of any Employee Benefit Plan, except as required by law or the terms of such Employee Benefit Plan, and no action to accelerate the vesting of, or payment of, any compensation or benefit under any Employee Benefit Plan or to fund or in any other way secure the payment of compensation or benefits under any Employee Benefit Plan;
(h) no material acquisition or disposition or abandonment of any assets (or any contract or arrangement therefor) except in the ordinary course of business nor any other transaction by the Company otherwise than for fair value in the ordinary course of business, except for between entities than are within the Company;
(i) no change in accounting methods or practices of the Company, except as required by applicable law or as disclosed in the notes to the Historical Financials;
(j) no loss, or any material development that is reasonably expected by the Company to result in a loss, of any significant supplier, customer, distributor or account of the Company (other than the completion in the ordinary course of business of specific projects for customers);
(k) no termination of any material contract or agreement to which the Company is a party or by which it is bound;
(l) no Encumbrance placed on any of the properties of the Company other than Permitted Encumbrances or in the ordinary course of business for equipment leased, consistent with past practices;
(m) no payment or discharge of a material lien or material liability of the Company, other than in the ordinary course of business consistent with past practices, purchase money liens and liens for taxes not yet due and payable;
(n) no contingent liability incurred by Target the Company as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Dateothers;
(do) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any no obligation or liability incurred by Target the Company to any of its officers, directors, shareholders equity holders, or employees, including any material increases in compensation, or any loans or advances made by Target the Company to any of its officers, directors, shareholders equity holders, or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions employees in the ordinary course of business; or;
(np) no arrangements relating to any royalty or similar payment based on the revenues, profits or sales volume of the Company, whether as part of the terms of the Company’s capital stock or by any separate agreement;
(q) no amendment to the Company’s organizational documents other than as expressly contemplated by this Agreement;
(r) no settlement or compromise of any material claim, notice, audit report or assessment in respect of Taxes; no change in any annual Tax accounting period; no change of any method of Tax accounting; no entrance into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or understanding whether closing agreement, in writing each case, the primary subject matter of which is Tax; no surrender of any right to claim a material Tax refund; nor consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment (excluding extensions pursuant to normal course extensions of time to file Tax Returns); and
(s) no commitment (contingent or otherwise, for Target ) to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target (and, with respect to clause (e) below, December 31, 2005):
(a) there has not been any Company Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Company Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of any Company or Subsidiary having a replacement cost of more than $5,000 for any single loss or $10,000 in the aggregate for any related losses;
(c) no Company or Subsidiary has made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of any Company or Subsidiary, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of the Companies and the Subsidiaries other than officers or senior managers;
(d) no Company or Subsidiary has entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by any Company or Subsidiary in accounting or Tax reporting principles, methods or policies or any settlement of any Tax controversy;
(f) no Company or Subsidiary has conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bg) no Company or Subsidiary has entered into any other material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Datetransaction;
(dh) any material obligation no Company or liability of any nature, whether accrued, absolute, contingent Subsidiary has hired employees or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement engaged independent contractors to provide services for the purchase, sale or other disposition, of any clients of the material properties such Company or assets of Target Subsidiary other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damageconsistent with, destruction or loss of Target properties or assetsand at a level consistent with, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice;
(i) no Company or Subsidiary has materially breached any material change with respect to the officers of TargetContract or materially amended any Contract;
(j) no Company or Subsidiary has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) no Company or Subsidiary has made any payment loans, advances or discharge capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of a material lien such Company or liability of Target which was not shown on the Most Recent Balance Sheet or incurred Subsidiary other than intercompany transactions in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesconsistent with past practice;
(l) no Company or Subsidiary has mortgaged, pledged or subjected to any change Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of such Company or Subsidiary except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in accounting methods or practices the ordinary course of Targetbusiness consistent with past practice;
(m) no Company or Subsidiary has discharged or satisfied any other material transaction entered into by Target other than transactions Lien, or paid any obligation or Liability, except in the ordinary course of business; orbusiness consistent with past practice and which, in the aggregate, are not material to the Companies and the Subsidiaries;
(n) no Company or Subsidiary has canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past practice and which, in the aggregate, are not material to the Companies and the Subsidiaries;
(o) no Company or otherwiseSubsidiary has made or committed to make any capital expenditures or capital additions or improvements in excess of $10,000 individually or in the aggregate, for Target to take except as set forth in the Disclosure Schedule, or otherwise in the ordinary course of business consistent with past practices;
(p) no Company or Subsidiary has entered into any prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the sales of its services for periods prior to the Closing;
(q) no Company or Subsidiary has amended any of its Organizational Documents;
(r) no Company or Subsidiary has issued any equity securities or any security exercisable or exchangeable for or convertible into equity securities of the such Company or Subsidiary; and
(s) no Company or Subsidiary has entered into any agreements to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.8 which have not been consummated as of the date hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target 2020, (1) there has not been any Material Adverse Effect and (2) except as set forth on Section 4(e) of the Disclosure Schedules or expressly contemplated by this Agreement, each of the Sellers has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and and, without limiting the generality of the foregoing, neither Seller nor VA UK has:
(i) transferred, suffered or imposed any Lien upon, or experienced any material damage or loss (whether or not prohibited covered by insurance) to, any of the terms Purchased Assets (including any Owned Company IP), other than sales of this Agreementinventory for fair consideration in the ordinary course of business;
(eii) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of licensed any of the material properties or assets of Target other than Owned Company IP, except for nonexclusive licenses on such Seller’s form customer agreement, which has been made available to Purchaser, in the ordinary course of business or as contemplated by this Agreementconsistent with past practice;
(fiii) terminated any material damageContract involving either more than $25,000 or outside the ordinary course of business, destruction and no Person (including any Seller) has accelerated, terminated or loss of Target properties modified any Contract involving more than $25,000 to which any Seller is a party or assets, whether or not covered by insurancewhich such Seller;
(giv) compromised any declaration, setting aside right or payment claim (or series of any dividend by Target related rights or claims) either involving more than $25,000 or outside the making ordinary course of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stockbusiness;
(hv) entered into, established, modified or terminated, or agreed or promised to enter into, modify or terminate, any material labor trouble Plan, or material claim of unfair labor practices involving Target; other employment, consulting or collective bargaining agreement, or otherwise increased (or agreed or promised to increase), or made (or agreed to or promised to make), any material other change in to the compensation and terms of employment and/or service (including with respect to salary, wage rate, bonus, sales commission, award, grant, benefits, employment status, title, and equity-based or equity-linked compensation) payable or to become payable to any managers, officers, employees, consultants or independent contractors of such Seller in excess of $25,000 individually or in excess of $50,000 in the aggregate;
(vi) failed to promptly pay and discharge current liabilities, except where disputed in good faith by Target appropriate proceedings and for which adequate reserves have been established in accordance with GAAP;
(vii) (A) made any change to its pricing, discount, allowance, return or refund policies, (B) changed in any material manner its cash management customs or practices, collection practices or rates for accounts receivable or its payment practices or rates for accounts payable, including taking or omitting to take any action that has or would reasonably have been expected to have had the effect of (x) accelerating to pre-Closing periods sales to the trade or other customers or other accounts receivables that would otherwise be expected to occur or be received, as applicable, after the Closing or (y) delaying or postponing the payment of any accounts payable, or (C) granted any pricing, discount, allowance, refund or return terms for any customer or supplier;
(viii) made, changed or revoked any election with respect to Taxes, adopted or changed any method of Tax accounting, filed any amended Tax Return, entered into any “closing agreement” (as described in Section 7121 of the Code or any corresponding provision of state, local, or non-U.S. income Tax law), settlement or compromise of any claim or assessment relating to Taxes, entered into any Tax sharing, allocation, indemnity or similar agreement, consented to any extension or waiver of any statute of limitations period applicable to any Tax Return or claim or assessment with respect to Taxes, or taken any other similar action relating to the filing of any Tax Return or the payment of any Tax to the extent such similar action could result in the creation or imposition of any Lien for Taxes, other than Permitted Liens, on any of the properties or assets of the Business;
(ix) declared, set aside or paid any dividend or distributed cash or other payment or property to any equityholder, redeemed or otherwise acquired any of its officers securities or employees warrants, options or other than normal merit increases in accordance with rights to acquire its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeessecurities;
(ix) borrowed any amount or incurred, become subject to, created, paid or repaid any material change with respect to the officers of TargetLiability;
(jxi) made any payment loan to, or discharge of a material lien entered into any other transaction with, any Seller or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, their current or former directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directorsmanagers, officers or employees;
(lxii) made any change in accounting methods acquisition (including by merger) of the capital stock or practices a material portion of Targetthe assets of any other Person;
(mxiii) changed any other annual accounting period, adopted or changed in any material transaction entered into respect any method of accounting or accounting practices, estimation techniques, assumptions, policies and principles theretofore adopted or followed, except as required by Target other than transactions applicable Law and reflected in a note to the ordinary course Financial Statements, or reversed any accruals or reserves;
(xiv) become subject to, or initiated, or settled any Action, of businessany nature; or
(nxv) any agreement or understanding whether in writing or otherwise, for Target committed to take do any of the actions specified in paragraphs (a) through (m) above.foregoing
Appears in 1 contract
Sources: Asset Purchase Agreement
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, Except as contemplated by this Agreement and except as otherwise set forth in on Section 3.9 3.5 of the Target Sellers Disclosure ScheduleSchedules, there has not beensince January 1, 2023:
(a) any material change Sellers have conducted the Product Operations in the financial condition, properties, assets, liabilities, business or operations Ordinary Course of TargetBusiness;
(b) there has not occurred any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.Material Adverse Effect;
(c) there has been no entry into or amendment of any material mortgage, encumbrance agreements pursuant to which any Seller or lien placed on any of the properties of Target which remains its Subsidiaries (i) assigns, transfers or licenses exclusively to any Person any Seller Intellectual Property Rights or (ii) otherwise grants to any Person exclusive rights in existence on the date hereof or will remain on the Closing Dateany Seller Intellectual Property Rights;
(d) there has been no assignment, transfer, lease, license or other disposition of, or agreement to sell, assign, transfer, lease, license or otherwise dispose of, any of the material obligation properties, rights or liability assets of any natureSeller or any of its respective Subsidiaries used or held for use in, whether accruedrelated to or otherwise helpful to maintaining the Product Operations or the Purchased Assets, absoluteexcept in the Ordinary Course of Business, contingent or otherwise, asserted or unasserted, incurred by Target the imposition of any Lien (other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreementa Permitted Lien) on, any properties, rights or assets that are Purchased Assets;
(e) there has been no reduction or increase in the amount of any purchase, sale or other disposition, insurance coverage of Sellers or any agreement or of their Subsidiaries with respect to the Purchased Assets and the Product Operations provided by existing insurance policies other arrangement for than upon the purchase, sale or other disposition, expiration of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreementsuch policy;
(f) there has been no disclosure of any material damage, destruction proprietary confidential information comprising the Purchased Assets or loss of Target properties otherwise relating to the Product Operations to any Person that is not either subject to any fully assignable confidentiality agreement or assets, whether or not covered bound by insurancea legal duty to keep such information confidential;
(g) any declarationSellers have not materially increased the salary, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase bonus or other acquisition compensation or benefits payable to any Product Operations Employees, other than: (i) as required by Target Law or a Labor Agreement; (ii) the initial compensation and benefits provided to a prospective Product Operations Employee in connection with the hiring of its own capital stocksuch Product Operations Employee prior to the date hereof; or (iii) increases (including in connection with promotions) in the Ordinary Course of Business consistent with past practice;
(h) Sellers have not established, adopted, amended or terminated any material labor trouble Plan in which any Product Operations Employee participates for which Buyer or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeesAffiliates may be responsible;
(i) Sellers have not accelerated or committed to accelerate the funding, payment or vesting of any material change with respect compensation or benefits provided to the officers of Target;any Product Operations Employee, including under any Plan, other than as required by Law or a Labor Agreement; and
(j) Sellers have not (i) modified, extended, terminated or entered into any payment Labor Agreement in which any Product Operations Employee participates; (ii) recognized or discharge certified any labor union, labor organization, works council, employee representative or group of a material lien employees as the bargaining representative of Sellers or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officerstheir Affiliates in which any Product Operations Employee participates; or (iii) waived or released any noncompetition, directorsnonsolicitation, shareholders nondisclosure or employees, including other restrictive covenant obligation of any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) aboveProduct Operations Employee.
Appears in 1 contract
Sources: Asset Purchase Agreement (Seagate Technology Holdings PLC)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure ScheduleUnion Balance Sheet Date, there has not been:
(a) been any Union Material Adverse Effect. Except as expressly contemplated hereby, since the Union Balance Sheet Date, Union has carried on and operated its business in all material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred respects in the ordinary course of business consistent with past practice, and not prohibited by Union has not:
(a) amended or modified its Organizational Documents;
(b) sold, leased, assigned, transferred or purchased any material tangible assets, in each case in a single or related series of transactions, except in the terms ordinary course of this Agreementbusiness;
(c) issued, sold, redeemed or transferred any of its capital stock or other equity securities, securities convertible into its capital stock or other equity securities or warrants, options or other rights to acquire its capital stock or other equity securities, or any bonds or debt securities;
(d) prior to the date hereof, declared or paid any dividend or other distribution of the assets of Union;
(e) made or approved any purchasematerial changes in its employee benefit plans or made any material changes in wages, sale salary, or other dispositioncompensation, including severance, with respect to its current or former officers, directors or executive employees other than increases in base salaries and wages that are consistent with past practices or as required by applicable Law or any Union Plan;
(f) paid, loaned or advanced (other than the payment of compensation and benefits in the ordinary course of business consistent with past practice or the payment, advance or reimbursement of business expenses in the ordinary course of business consistent with past practice or 401(k) plan loans) any amounts to, or sold, transferred or leased any agreement of its assets to, or entered into any other transactions with, any of its Affiliates, or made any loan to, or entered into any other transaction with, any of its directors or officers outside the ordinary course of business or other arrangement for the purchasethan at arm’s length;
(g) except as required by applicable Law, sale adopted or other dispositionmaterially amended any Union Plans;
(h) hired or terminated any officers or employees of Union with fixed annual compensation in excess of $150,000, of any of the material properties or assets of Target with respect to non-officer employees, other than in the ordinary course of business or as contemplated by this Agreementbusiness;
(fi) commenced or settled any Action in which the amount in dispute is in excess of $100,000;
(j) made any material change in accounting principles, methods, procedures or policies, except as required by GAAP;
(k) made, changed or revoked any material Tax election, or settled or compromised any material Tax claim or liabilities, or filed any substantially amended material Tax Return;
(i) authorized, proposed, entered into or agreed to enter into any plan of liquidation, dissolution or other reorganization or (ii) authorized, proposed, entered into or agreed to enter into any merger, consolidation or business combination with any Person;
(m) except in the ordinary course of business, incurred or discharged any Indebtedness;
(n) made capital expenditures or capital additions or betterments in excess of $100,000 in the aggregate;
(o) suffered any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance;
(gp) sold, assigned, transferred, abandoned or allowed to lapse or expire any declarationmaterial Intellectual Property rights or other intangible assets owned, setting aside used or payment licensed by Union in connection with any product of any dividend by Target Union or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target operation of its own capital stockbusiness;
(hq) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target been subject to any claim or threat of its officers infringement, misappropriation or employees other than normal merit increases in accordance with its usual practices, violation by or any bonus payment against Union of Intellectual Property rights of Union or arrangement made to or with any of such officers or employeesa third party;
(ir) materially reduced the amount of any material change with respect insurance coverage provided by existing insurance policies; or (s) committed to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take do any of the actions specified in paragraphs (a) through (m) aboveforegoing.
Appears in 1 contract
Sources: Merger Agreement (Uroplasty Inc)
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not beenon Schedule 4.8:
(a) since the Latest Balance Sheet Date, except for the Excluded Assets or the disposition of obsolete equipment, neither Sellers nor any Company has sold, leased, transferred or assigned any of the material change assets of any Company, tangible or intangible, other than for reasonable consideration in the financial condition, properties, assets, liabilities, business or operations Ordinary Course of TargetBusiness;
(b) since the Latest Balance Sheet Date, no Company has entered into any Contract (or series of related Contracts with the same Person), that is not terminable upon ninety (90) days’ written notice or less without penalty or acceleration of any obligations thereunder, obligating a Company to make aggregate annual payment of more than $[*] that is outside the Ordinary Course of Business;
(c) since the Latest Balance Sheet Date, no Person (including Sellers or any Company) has accelerated, suspended, terminated, materially and adversely modified or canceled any Contract (or series of related Contracts with the same Person) obligating a Person to make aggregate annual payments to a Company of more than $[*] to which any Company is a party or by which it is bound;
(d) since the Last Fiscal Year End, other than in the Ordinary Course of Business, no material Encumbrance has been imposed on any asset of any Company;
(e) since the Latest Balance Sheet Date, no Company has made any capital expenditure (or series of related capital expenditures with the same Person) outside the Ordinary Course of Business or made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions with the same Person) outside the Ordinary Course of Business;
(f) since the Latest Balance Sheet Date, other than advances on existing credit facilities in the Ordinary Course of Business, no Company has created, incurred, assumed or guaranteed any Indebtedness;
(g) since the Latest Balance Sheet Date, no Company has delayed, postponed or accelerated the payment of accounts payable or other liabilities or the receipt of any accounts receivable, in each case in any material contingent liability incurred by Target as guarantor or otherwise respect, except in the Ordinary Course of Business;
(h) since the Latest Balance Sheet Date, other than with respect to the obligations Excluded Assets, no Company has canceled, compromised, waived or released any material right or claim (or series of others related rights or any cancellation claims related to the same Person) except in the Ordinary Course of Business;
(i) since the Latest Balance Sheet Date, there has been no change made, or authorized to be made, in the Organizational Documents of any material debt Company;
(j) since the Latest Balance Sheet Date, no Company has experienced any damage, destruction or claim owing loss (not covered by insurance) in excess of $[*] in the aggregate to its property;
(k) since the Latest Balance Sheet Date, no Company has made any loan to, or entered into any other transaction with, any Seller, any Business Employee or any Company’s directors, officers, employees or independent contractors, or any Affiliate of the foregoing, other than those contemplated by the Agreement, advances in the Ordinary Course of Business, not exceeding $[*] in the aggregate, to Business Employees that are not Sellers, Affiliates of any Seller, or officers, managers or directors of any Company;
(l) since the Latest Balance Sheet Date, no Company has entered into any Plan or any other employment, consulting, severance, retention, change in control or indemnification agreements;
(m) since the Last Fiscal Year End, no Company has entered into, or become bound by, any collective bargaining agreement or other obligation to any labor organization or employee representative, in each case, whether written or oral, or materially modified the terms of any such existing agreement except as required by applicable Law and there has not been any material work stoppages, strikes or threats thereof;
(n) since the Last Fiscal Year End, no Company has made any material change in accounting principles;
(o) since the Last Fiscal Year End, to Seller’s Knowledge, no written complaint or investigation against any Company has been commenced by any Governmental Entity;
(p) since the Latest Balance Sheet Date, there has been no increase to the salary, wage or other compensation or level of benefits payable or to become payable by any Company to any of its officers, managers, directors, Business Employees, agents or Independent Contractors (including any Seller, in their capacities as such) except in the Ordinary Course of Business;
(q) since the Last Fiscal Year End, no Material Adverse Effect has occurred;
(r) since the Last Fiscal Year End, no Company has received any written notice from any material supplier, Governmental Entity or any other Person, the result of which would materially and adversely impact the Business;
(s) since the Latest Balance Sheet Date, no Company has issued, sold or otherwise disposed of any of its Ownership Interests, or granted any Ownership Interests, including any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its Ownership Interests; [*] Please refer to footnote 1 on page 1 of this Exhibit 2.5
(t) since the Last Fiscal Year End, except in the Ordinary Course of Business, no Company has (i) made any settlement of or compromised any Tax liability, changed or revoked any Tax election or Tax method of accounting, made any new Tax election or adopted any new Tax method of accounting; (ii) surrendered any right to claim a refund of Taxes; (iii) consented to any extension or waiver of the limitation period applicable to any material right of, Target.
Tax claim or assessment; or (civ) taken any material mortgage, encumbrance other action that would have the effect of increasing the Tax liability of any Company for any period (or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on portion thereof) beginning after the Closing Date;
(du) since the Latest Balance Sheet Date, except for the Cash Sweep, no Company has declared, set aside or paid any material obligation dividend or liability made any distribution with respect to its Ownership Interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its Ownership Interests or split, combined or reclassified any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreementits Ownership Interests;
(ev) any purchasesince the Latest Balance Sheet Date, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any except as part of the material properties requirements of the Closing, no Company has discharged or assets of Target satisfied any Encumbrance or paid any liability, other than current liabilities paid in the ordinary course Ordinary Course of business Business;
(w) since the Latest Balance Sheet Date, except as required by applicable Law, no Company has adopted or as terminated or made any material amendment or modification to any Plans;
(x) since the Latest Balance Sheet Date, no Company has taken any action outside of the Ordinary Course of Business, except for actions explicitly permitted, contemplated or required by this Agreement;; and
(fy) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target since the Latest Balance Sheet Date or the making of Last Fiscal Year End (as applicable), neither Sellers nor any other distribution in respect of the capital stock of Target Company has committed or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
agreed (h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target ) to take any of the actions specified described in paragraphs (a) through (m) abovethis Section 4.8.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise expressly contemplated by this Agreement or as set forth in Section 3.9 of on Schedule 4.7, since the Target Disclosure Schedule, Purchaser Balance Sheet Date:
(i) there has not been:
(a) been an event which had a Material Adverse Effect on Purchaser nor has there occurred any material change event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Material Adverse Effect on Purchaser;
(bii) there has not been any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Seller having a replacement cost of more than $50,000 for any single loss or $100,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Seller or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Seller of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Seller;
(hiv) the Purchaser has not awarded or paid any material labor trouble bonuses to employees of the Purchaser with respect to the fiscal year ended 2004, except to the extent accrued on the Purchaser Balance Sheet or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Purchaser’s directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Purchaser);
(kv) there has not been any obligation change by the Purchaser in accounting or liability incurred Tax reporting principles, methods or policies;
(vi) the Purchaser has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Purchaser has not failed to promptly pay and discharge current liabilities except where disputed in good faith by Target appropriate proceedings;
(viii) the Purchaser has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Seller;
(ix) the Purchaser has not mortgaged, pledged or subjected to any Lien any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Seller, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nx) the Purchaser has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Seller;
(xi) the Purchaser has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Purchaser;
(xii) the Purchaser has not made or committed to make any capital expenditures or capital additions or betterments in excess of $50,000 individually or $200,000 in the actions specified aggregate;
(xiii) the Purchaser has not instituted or settled any material legal proceeding; and
(xiv) the Purchaser has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 5.7.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target has conducted its business only in the ordinary course consistent with past practice and, except Except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as expressly contemplated by this Agreement, since the Inception Date:
(i) there has not been any Material Adverse Effect nor has there occurred any event which is reasonably likely to result in a Material Adverse Effect;
(fii) there has not been any material damage, destruction or loss of Target properties or assetsloss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $25,000 for any single loss or $100,000 for all such losses;
(giii) there has not been any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the any shares of capital stock of Target the Company or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by Target the Company of its own any outstanding shares of capital stockstock or other securities of, or other ownership interest in, the Company;
(hiv) the Company has not awarded or paid any material labor trouble bonuses to employees of the Company except to the extent accrued on the Company Financial Statements or material claim of unfair labor practices involving Target; entered into any material change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by Target it to any of its officers the Company’s directors, officers, employees, agents or employees representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other than normal merit increases in accordance with its usual practicesincentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers directors, officers, employees, agents or employees;
representatives (i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred other than normal increases in the ordinary course of business thereafterconsistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Company);
(kv) there has not been any obligation change by the Company in accounting or liability incurred by Target Tax reporting principles, methods or policies; the Company has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vi) the Company has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
(vii) the Company has not mortgaged, pledged or subjected to any Lien, any of its officers, directors, shareholders or employees, including any material increases in compensationassets, or acquired any loans assets or advances made by Target to sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of its officers, directors, shareholders or employeesthe Company, except normal compensation and expense allowances payable to directorsfor assets acquired or sold, officers assigned, transferred, conveyed, leased or employees;
(l) any change in accounting methods or practices otherwise disposed of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; orbusiness consistent with past practice;
(nviii) the Company has not discharged or satisfied any agreement Lien, or understanding whether paid any obligation or liability (fixed or contingent), except in writing the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company;
(ix) the Company has not canceled or otherwisecompromised any debt or claim or amended, for Target canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to take the Company;
(x) the Company has not made or committed to make any capital expenditures or capital additions or betterments in excess of $25,000 individually or $100,000 in the actions specified aggregate;
(xi) the Company has not instituted or settled any material legal proceeding; and
(xii) the Company has not agreed to do anything set forth in paragraphs (a) through (m) abovethis Section 3.11.
Appears in 1 contract
Sources: Share Exchange Agreement (Sentient Brands Holdings Inc.)
Absence of Certain Developments. Since December 31the Balance Sheet Date (and, 2006 Target with respect to clauses (a), (e), (f) and (p), the date that is 12 months prior to the Balance Sheet Date):
(a) there has not been any Seller Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Seller Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of Seller having a replacement cost of more than $5,000 for any single loss or $10,000 for all such losses;
(c) Seller has not made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of Seller, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of Seller other than officers or senior managers;
(d) Seller has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by Seller in accounting or Tax reporting principles, methods or policies;
(f) Seller has not conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bg) Seller has not entered into (1) any material contingent liability incurred by Target as guarantor Material Contract that is not an Included Contract or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c2) any other material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Datetransaction;
(dh) any material obligation Seller has not hired employees or liability engaged independent contractors to provide services for clients of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target Seller other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damageconsistent with, destruction or loss of Target properties or assetsand at a level consistent with, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice;
(i) Seller has not materially breached any material change with respect to the officers of TargetIncluded Contract or materially amended any Included Contract;
(j) Seller has not failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) Seller has not made any payment loans, advances or discharge capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred Seller other than intercompany transactions in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesconsistent with past practice;
(l) Seller has not mortgaged, pledged or subjected to any change Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in accounting methods or practices the ordinary course of Targetbusiness consistent with past practice;
(m) Seller has not discharged or satisfied any other material transaction entered into by Target other than transactions Lien, or paid any obligation or Liability, except in the ordinary course of business; orbusiness consistent with past practice and which, in the aggregate, are not material to Seller;
(n) Seller has not canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past practice and which, in the aggregate, are not material to the Company;
(o) Seller has not made or otherwisecommitted to make any capital expenditures or capital additions or improvements in excess of $5,000 individually or $10,000 in the aggregate, for Target to take except as set forth in the Seller Disclosure Schedule, or otherwise in the ordinary course of business consistent with past practices;
(p) Seller has not entered into any prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the sales of its services for periods prior to any Closing hereunder;
(q) Seller has not amended any of its Organizational Documents;
(r) Seller has not issued any membership interests or any security exercisable or exchangeable for or convertible into membership interests of Seller; and
(s) Seller has not entered into any agreements to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.8 which have not been consummated as of the date hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2006 Target (and, with respect to clause (e) below, December 31, 2005):
(a) there has not been any Company Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Company Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of any Company having a replacement cost of more than $10,000 for any single loss or $25,000 in the aggregate for any related losses;
(c) none of the Companies has made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of any Company, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of any Company other than officers or senior managers;
(d) none of the Companies has entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by any Company in accounting or Tax reporting principles, methods or policies or any settlement of any Tax controversy;
(f) none of the Companies has conducted its business only other than in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Targetpractice;
(bg) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any none of the properties of Target which remains in existence on the date hereof or will remain on the Closing DateCompanies has entered into any other material transaction;
(dh) any material obligation none of the Companies has hired employees or liability engaged independent contractors to provide services for clients of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target Company other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damageconsistent with, destruction or loss of Target properties or assetsand at a level consistent with, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change in the compensation payable or to become payable by Target to any of its officers or employees other than normal merit increases in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employeespast practice;
(i) none of the Companies has breached any Contract in any material change with respect to the officers of Targetrespect;
(j) none of the Companies has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) none of the Companies has made any payment loans, advances or discharge capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred any Company other than intercompany transactions in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesconsistent with past practice;
(l) none of the Companies has mortgaged, pledged or subjected to any change Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of any Company except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in accounting methods or practices the ordinary course of Targetbusiness consistent with past practice;
(m) none of the Companies has discharged or satisfied any other material transaction entered into by Target other than transactions Lien, or paid any obligation or Liability, except in the ordinary course of business; orbusiness consistent with past practice;
(n) none of the Companies has canceled or compromised any agreement debt or understanding whether claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in writing the ordinary course of business consistent with past practice and which, in the aggregate, are not material to any Company;
(o) none of the Companies has made or otherwisecommitted to make any capital expenditures or capital additions or improvements in excess of $50,000 individually or in the aggregate, for Target to take except as set forth in the Disclosure Schedule, or otherwise in the ordinary course of business consistent with past practices;
(p) none of the Companies has entered into any prepaid services transactions with any of its customers or otherwise accelerated revenue recognition or the sales of its services for periods prior to the Closing;
(q) except for the iProcert Operating Agreement, none of the Companies has amended any of its Organizational Documents;
(r) none of the Companies has issued any equity securities or any security exercisable or exchangeable for or convertible into equity securities of such Company; and
(s) none of the Companies has entered into any agreements to do or perform in the future any actions specified referred to in paragraphs (a) through (m) abovethis Section 3.8 which have not been consummated as of the date hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheets Date (a) except as contemplated by this Agreement, 2006 Target has the Company and its Subsidiaries have conducted its business their respective businesses only in the ordinary course consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, business; (b) there has not been:
(a) been any material change in the financial conditionevent, propertieschange, assets, liabilities, business occurrence or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
circumstance that has had a Material Adverse Effect; and (c) and there has not been any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(di) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or other casualty loss of Target properties with respect to any material asset or assetsmaterial property owned, whether leased or not covered otherwise used by insurance;
the Group Companies; (gii) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target the Company or any direct other payment to the Sellers or indirect redemptiontheir Affiliates; (iii) incurrence, purchase assumption or guarantee by the Company of any Company Indebtedness more than NIS 1,000,000 in the aggregate; (iv) creation or assumption by the Group Companies of any Lien (other acquisition than Permitted Liens); (v) change by Target of the Company in its own capital stock;
accounting principles, practices or methods, except as required by concurrent changes in GAAP; (hvi) any material labor trouble increase of, or material claim of unfair labor practices involving Target; an undertaking for, any material change increase in the compensation payable or to that could become payable by Target the Group Companies to any of its employees, officers or employees directors, other than normal merit increases that do not exceed, in accordance with its usual practicesthe aggregate, NIS 1,000,000 per annum; (vii) any capital expenditures or commitments therefor that exceed, in the aggregate, NIS 1,000,000; (viii) termination or creation of any Material Contract, or any bonus material amendments thereto or defaults thereunder; or (ix) (A) acceleration of the payment of customer accounts receivables (including shortening payment terms, providing incentives for early payment or arrangement made otherwise) or (B) delaying of the payment on accounts payable to suppliers, vendors or with others beyond due dates; or (C) varying any of such officers or employees;
(i) inventory purchasing practices, in each case, in any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the actions specified in paragraphs (a) through (m) abovefrom past practices. .
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth in Section 3.7 of the Disclosure Schedule (arranged in subsections corresponding to the subsections set forth below; provided that all such subsections qualify this introductory clause), 2006 Target since the Balance Sheet Date, the Company has conducted its business only in the ordinary course materially consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there has not been:
(a) there has not been any material change Company Material Adverse Change nor has there occurred any event which is reasonably likely to result in the financial condition, properties, assets, liabilities, business or operations of Targeta Company Material Adverse Change;
(b) there has not been any material contingent liability incurred split, combination or reclassification of any shares of capital stock or other security of the Company that is not reflected in Section 3.3 of the Disclosure Schedule;
(c) there has not been any damage, destruction or loss that is not covered by Target as guarantor or otherwise insurance, with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any property and assets of the properties Company having a replacement cost of Target which remains more than $50,000 for any single loss or $100,000 in existence on the date hereof or will remain on the Closing Dateaggregate for any related losses;
(d) the Company has not made any material obligation change in the rate of compensation, commission or liability of any naturebonus payable, whether accruedor paid or agreed or orally promised to pay, absolute, contingent conditionally or otherwise, asserted any bonus, incentive, retention or unassertedother compensation, incurred by Target retirement or severance benefit or vacation pay, to or in respect of any director, officer or employee of the Company, other than obligations and liabilities incurred increases in the ordinary course of business and not prohibited by the terms of this Agreementconsistent with past practice;
(e) the Company has not entered into or amended any purchaseemployment, sale deferred compensation, severance or other disposition, similar agreement;
(f) the Company has not hired any employees or engaged any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target individual independent contractors other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insuranceconsistent with past practice;
(g) the Company has not made any declarationloans, setting aside advances or payment of capital contributions to, or investments in, any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stockPerson;
(h) the Company has not mortgaged, pledged, or subjected to any material labor trouble or material claim of unfair labor practices involving Target; any material change in Lien, other than the compensation payable or to become payable by Target to Permitted Liens, any of its officers assets or employees other than normal merit increases in accordance with its usual practicessold, assigned, transferred, conveyed or otherwise disposed of any bonus payment assets of the Company except for assets sold, assigned, transferred, conveyed or arrangement made to or with any otherwise disposed of such officers or employees;
(i) any material change with respect to the officers of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafterconsistent with past practice;
(i) the Company has not canceled or affirmatively waived any debt or claim or amended, canceled, terminated or affirmatively waived any right under any Material Contract except in the ordinary course of business consistent with past practice;
(j) the Company has not committed to make any capital expenditures or capital additions or improvements (i) in excess of $50,000 in the aggregate or (ii) outside the ordinary course of business consistent with past practices;
(k) any obligation the Company has not accelerated revenue recognition or liability incurred by Target the sales for periods prior to any the Closing outside of its officers, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any the ordinary course of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employeesbusiness consistent with past practices;
(l) any change in accounting methods the Company has not materially changed its policies or practices with respect to the payment of Targetaccounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(m) the Company has not adopted any other material transaction plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consented to the filing of any bankruptcy petition against it under any similar Law;
(n) the Company has not discharged or repaid any Indebtedness for Borrowed money outside the ordinary course of business consistent with past practice;
(o) the Company has not entered into any compromise or settlement of any Legal Proceeding or investigation by Target any Governmental Body;
(p) the Company has not transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Intellectual Property other than transactions in the ordinary course of businessbusiness consistent with past practice; orand
(nq) the Company has not entered into any agreement agreements or understanding whether commitments to do or perform in writing or otherwise, for Target the future any actions referred to take any of the actions specified in paragraphs (a) through (m) abovethis Section 3.7.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RumbleON, Inc.)
Absence of Certain Developments. Since December 31Except as expressly contemplated by this Agreement or as set forth on Schedule 4.9 and in the Financial Statements, 2006 Target since the date of the last set of Financial Statements: (1) the Company has conducted its business in all material respects only in the ordinary course Ordinary Course of Business and in substantially the same manner as previously conducted; (2) has not made any change in any method of accounting or accounting practice or policy used by the Company or the Subsidiary; (3) has not made any material changes in the customary methods of operating the business of the Company or the Subsidiary including, without limitation, practices and policies relating to marketing, selling and pricing; (4) has not amended, terminated, cancelled or compromised any material claims of the Company or the Subsidiary or waived any rights of substantial value; (5) has not entered into any agreement, arrangement or transaction with any directors, officers, employees or shareholders of the Company or the Subsidiary other than those contemplated by this Agreement or for compensation in the Ordinary Course of Business consistent with past practice and, except as otherwise set forth in Section 3.9 of the Target Disclosure Schedule, there practices; (6) has not been:
(a) granted any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, Target.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, incurred by Target other than obligations and liabilities incurred in the ordinary course of business and not prohibited by the terms of this Agreement;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(f) any material damage, destruction or loss of Target properties or assets, whether or not covered by insurance;
(g) any declaration, setting aside or payment of any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) any material labor trouble or material claim of unfair labor practices involving Target; any material change general increase in the compensation payable or to become payable by Target to any of its officers or employees (including any such increase pursuant to any bonus, pension, profit-sharing or other than normal merit increases plan or commitment), of the Company or the Subsidiary or any special increase in accordance with its usual practicesthe compensation payable or to become payable to any such officer or employee, or made any bonus payment payments to any such officer or arrangement employee, except for normal, bargained, merit or cost of living payments or increases made to in the Ordinary Course of Business; (7) has not made capital expenditures or with any commitments on behalf of such officers or employees;
(i) any material change with respect relating to the officers business in excess of Target;
(j) any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred $50,000 in the ordinary course of business thereafter;
aggregate; (k) any obligation or liability incurred by Target to any of its officers8) has not agreed, directors, shareholders or employees, including any material increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any action described in this Section 4.9; or (9) to the knowledge of the actions specified Company and the Sellers, there has not been any event, change, occurrence or circumstance that has had or would reasonably be expected to have a Material Adverse Effect. For purposes of the “Effective Time”, the distributions and success bonuses described in paragraphs (a) through (m) abovethis Section shall be deemed to have occurred prior to the Effective Time.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)