Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date: (a) The Seller has not sold, leased, transferred, or assigned any assets used in the Business, tangible or intangible, outside the Ordinary Course of Business; (b) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business; (c) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business; (d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business; (e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business; (f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets; (g) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets; (h) The Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Business; (i) The Seller has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice; (j) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees; (k) The Seller has not made any other change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business; (l) The Seller has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice; (m) The Seller has not changed any accounting policy or tax elections or practices; and (n) The Seller has not committed to any of the foregoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Generex Biotechnology Corp), Asset Purchase Agreement (Generex Biotechnology Corp)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth on §4(I)(h) of the Disclosure Schedule, 2018since the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Target. Without limiting the generality of the foregoing, since that date and except as set forth on §4(I)(h) of the Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that dateSchedule:
(ai) The Seller Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller The Target has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Target) has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) to which the Seller Target is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller the Target has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller the Target has not made any material capital expenditures in respect expenditure (or series of the Business related capital expenditures) either involving more than $25,000 or outside the Ordinary Course of Business;
(fvi) The Seller the Target has not transferredmade any capital investment in, assignedany 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 $25,000 or outside the Ordinary Course of Business;
(vii) the Target 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;
(viii) the Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) the Target has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business;
(x) the Target has not granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller there has been no change made or authorized in the charter or bylaws of the Target;
(xii) the Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xiii) the Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xiv) the Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxv) The Seller the Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixvi) The Seller the Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxvii) The Seller the Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxviii) The Seller the Target has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xix) the Target has not made any other change in employment terms for any of its directors, but officers, and employees outside the Ordinary Course of Business;
(xx) the Target has not limited tomade or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(xxi) there has not been any other occurrence, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in event, incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesinvolving the Target; and
(nxxii) The Seller the Target has not committed to any of the foregoing.
Appears in 2 contracts
Sources: Stock for Stock Exchange Agreement (Vincera, Inc.), Stock for Stock Exchange Agreement (Vincera, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller Target has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including Target) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Target Subsidiaries is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller Target has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller Target has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller Target has not made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Target has not created, incurred, assumed, or guaranteed more than $250,000.00 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) Target has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has been no change made or authorized in the charter or bylaws of any of Target;
(x) Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller Target has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xvii) Target has not made any other material change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxviii) The Seller Target has not changed made any accounting policy loans or tax elections or practicesadvances of money except for loans to AM Trading, Inc. as set forth in the Disclosure Schedule; and
(nxix) The Seller Target has not committed to any of the foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Renegade Venture Nev Corp), Stock Purchase Agreement (Renegade Venture Nev Corp)
Events Subsequent to Most Recent Fiscal Year End. Since December 31the Most Recent Fiscal Year End, 2018except as set forth on Schedule 3(h), there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations or future prospects of the Seller taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The the Seller has not sold, disposed of, leased, transferred, transferred or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any material agreement, contract, lease, lease or license outside the Ordinary Course of Business;
(ciii) The the Seller has not accelerated, terminated, made material modifications to, to or canceled cancelled any material agreement, contract, lease, lease or license or Permit relating to the Business and to which the Seller is a party or by which it Seller is bound bound;
(iv) the Seller has not imposed any Security Interest upon any of the Acquired Assets;
(v) the Seller has not made any capital expenditures outside the Ordinary Course of Business;
(vi) the Seller has not made any capital investment or any loan to, any other Person outside the Ordinary Course of Business;
(vii) the Seller has not created, incurred, assumed or guaranteed any indebtedness for borrowed money other than in accordance with their respective terms or capitalized lease obligations in the Ordinary Course of Business;
(dviii) The the Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The there has been no change made or authorized in the Charter or Bylaws or any other governing instrument of the Seller;
(x) the Seller has not experienced any material damage, destruction, destruction or loss (whether or not covered by insurance) to the Acquired Assets;
(hxi) The the Seller has not, except as required by GAAP or applicable Law, permitted any change in any practice or policy relating to the Acquired Assets regarding accounting, pricing, marketing, purchasing, investment, inventory, credit or allowance;
(xii) the Seller has not paid, discharged or settled any claims, liabilities or obligations relating to the Acquired Assets, other than in the Ordinary Course of Business as they come due, in excess of $5,000 individually;
(xiii) the Seller has not made any loan to, to or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or officers and employees outside the Ordinary Course of Business;
(ixiv) The the Seller has not entered into any employment contract or collective bargaining agreement, written or oral, oral or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The the Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers and employees outside the Ordinary Course of Business;
(lxvi) The the Seller has not conducted adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers and practices employees;
(includingxvii) the Seller has not made any other material change in employment terms for any of its directors, but not limited to, the timing of collection of receivables officers and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxviii) The the Seller has not changed paid any accounting policy amount to any Person with respect to any liability or tax elections obligation (including any costs and expenses the Seller has incurred or practicesmay incur in connection with this Agreement and the transactions contemplated hereby) which would not constitute an Assumed Liability if in existence as of the Closing; and
(nxix) The the Seller has not committed to any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Newtek Business Services Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Company Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Company taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller Company has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller The Company has not entered into any material agreement, contract, lease, ,license or license other arrangement outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Company) has not accelerated, terminated, made material modifications materialmodifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller Company has not imposed any Lien Security Interest upon any of the Assets, its assets,tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller Company has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller Company has not transferred, assignedmade any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) The Company has not created, incurred, assumed, or guaranteed more than $10,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) The Company has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) There has been no change made or authorized to be made in the Certificate of Incorporation or bylaws of the Company;
(x) The Seller Company has not issued, sold, or otherwise disposed of any of its capitalstock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) The Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) The Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property and assets;
(hxiii) The Seller Company has not made any loan to, or entered into any other transaction with, any of its stockholders, directors, managers, officers, contractors, consultants employees or employees Affiliates outside the Ordinary Course of Business;
(ixiv) The Seller Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller Company has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller Company has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xvii) The Company has not made any other material change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesBusiness; and
(nxviii) The Seller Company has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 20182013, Target has conducted its operations in the Ordinary Course of Business and there has not been any Material Adverse Changeoccurrence, change, development or event that has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of Target. Without limiting the generality of the foregoing, since that date except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:4(j):
(ai) The Seller Target has not abandoned or let lapse, sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible leases, licenses, agreements, or intangible, outside the Ordinary Course of Business;Intangible Assets.
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;Business (except for this Agreement).
(ciii) The Seller Target has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in Material Contract outside the Ordinary Course of Business;.
(div) The Seller Target has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not or made any material capital expenditures in respect excess of the Business outside the Ordinary Course of Business;$50,000.
(fv) The Seller Target has not transferredissued, assignedsold, or otherwise disposed of any of its equity interests, or granted any license options, warrants, equity-based awards or sublicense other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of any rights under or with respect to any Intellectual Property included in the Assets;its equity interests.
(gvi) The Seller Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;affecting its properties, assets, business, or prospects.
(hvii) The Seller Target has not advanced any money or other property or made any loan to, or entered into any other transaction with, any of its current or former directors, managers, officers, contractorsemployees, consultants or employees outside the Ordinary Course of Business;and Affiliates.
(iviii) The Seller Target has not entered into any employment contract or similar Contract or any collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;agreement.
(jix) The Seller Target has not granted (or promised to grant) any increase in excess of two percent (2%) in the base compensation or fringe benefits of any of the Transferring Employees;its current or former directors, officers, and employees, or adopted, amended, modified, or terminated any Employee Benefit Plan.
(kx) The Seller Target has not made any loans or advances of money or changed its existing credit arrangements with any bank or other financial institution.
(xi) Target has not made any change in material employment terms for accounting methods or practices or any of the Transferring Employees outside change in depreciation or amortization policies or rates.
(xii) Target has not experienced any adverse change in Target’s condition (financial or otherwise), assets, liabilities, stockholder’s equity, business, earnings or prospects except changes in the Ordinary Course of Business;, none of which individually or in the aggregate has been or will have a material adverse effect on the conduct of the business of Target or otherwise be material to Target.
(lxiii) The Seller Target has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy agreed or tax elections or practices; and
(n) The Seller has not committed to any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Westell Technologies Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018, there There has not been any Material Adverse ChangeChange since the Most Recent Fiscal Year End. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller neither Target nor any Target Subsidiary has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
(bii) Except for this Agreement and except as set forth in Schedule 3(h)(ii) of the Transaction DocumentsDisclosure Schedule, the Seller neither Target nor any Target Subsidiary has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either requiring payments of more than $100,000, individually, or $300,000 in the aggregate, or outside the Ordinary Course of Business;
(ciii) The except as set forth in Schedule 3(h)(iii) of the Disclosure Schedule, no Seller Party has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) requiring payments of more than $100,000 to which the Seller Target or any Target Subsidiary is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller neither Target nor any Target Subsidiary has not imposed any Lien Liens upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller except as set forth in Schedule 3(h)(v) of the Disclosure Schedule, neither Target nor any Target Subsidiary has not made any material capital expenditures in respect expenditure (or series of the Business related capital expenditures) either requiring payments of more than $100,000 or outside the Ordinary Course of Business;
(fvi) The Seller neither Target nor any Target Subsidiary 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 requiring payments of more than $100,000 or outside the Ordinary Course of Business;
(vii) neither Target nor any Target Subsidiary has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation either in a face amount of or which could require payments of more than $100,000 or outside the Ordinary Course of Business;
(viii) neither Target nor any Target Subsidiary has delayed or postponed its payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) neither Target nor any Target Subsidiary has cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either requiring payments of more than $100,000 or outside the Ordinary Course of Business;
(x) neither Target nor any Target Subsidiary has transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller except as set forth in Schedule 3(h)(xi) of the Disclosure Schedule, there has not been no change made or authorized in the charter or bylaws of any of Target or any Target Subsidiary; * Certain confidential information contained in this document, marked with asterisks has been redacted pursuant to a request for confidential treatment and has been filed separately with the Securities and Exchange Commission.
(xii) neither Target nor any Target Subsidiary has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xiii) neither Target nor any Target Subsidiary has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xiv) neither Target nor any Target Subsidiary has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property, except for damage resulting from ordinary wear and tear;
(hxv) The Seller except as set forth in Schedule3(h)(xv) of the Disclosure Schedule, neither Target nor any Target Subsidiary has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants officers or employees outside the Ordinary Course of Businessemployees;
(ixvi) The Seller neither Target nor any Target Subsidiary has not entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxvii) The Seller except as set forth in Schedule 3(h)(xvii) of the Disclosure Schedule, neither Target nor any Target Subsidiary has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employeesits directors, officers, or employees, individually, in excess of $10,000 on an annual basis;
(kxviii) The Seller neither Target nor any Target Subsidiary 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, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xix) neither Target nor any Target Subsidiary has terminated the employment of any management employee or has made any other change in material employment terms for (a) any of its directors or officers, or (b) any of its employees other than terminations or changes in the Transferring Employees Ordinary Course of Business;
(xx) neither Target nor any Target Subsidiary has made or pledged to make any charitable or other capital contribution;
(xxi) there has not been any other material occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving Target or any Target Subsidiary;
(xxii) neither Target nor any Target Subsidiary has discharged a material Liability or Lien outside the Ordinary Course of Business;
(lxxiii) The Seller neither Target nor any Target Subsidiary has not conducted its cash management customs and practices (including, but not limited to, the timing made any loans or advances of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesmoney; and
(nxxiv) The Seller neither Target nor any Target Subsidiary has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, operations or financial condition of the Aseptic Business. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Transferor has not sold, leased, transferred, transferred or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside of the Ordinary Course Aseptic Business, except for sales of Businessinventory in the ordinary course of its business;
(bii) Except for this Agreement and no party (including the Transaction Documents, the Seller Transferor) has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications to, to or canceled any material agreement, contract, lease, lease or license or Permit relating to the Business and to which the Seller Transferor is a party or by which it is bound other than in accordance with their respective terms or in respect to the Ordinary Course of Aseptic Business;
(diii) The Seller the Transferor has not imposed made any Lien upon any capital expenditures materially in excess of the Assets, tangible or intangible, other than in budgeted amount for capital expenditures previously provided to the Ordinary Course of Transferee by the Transferor with respect to the Aseptic Business;
(eiv) The Seller the Transferor has not made mortgaged, pledged or subjected to any material capital expenditures in respect Security Interest any of the Business outside assets or properties relating to the Ordinary Course of Aseptic Business;
(fv) The Seller the Transferor has not transferred, assigned, waived or released any of its material rights with respect to the Aseptic Business;
(vi) the Transferor has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in related to the AssetsAseptic Business;
(gvii) The Seller the Transferor has not experienced any material damage, destruction, destruction or loss (whether or not covered by insurance) to property of the AssetsAseptic Business;
(hviii) The Seller the Transferor has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants officers with respect to the Aseptic Business other than the advance or employees outside reimbursement of reasonable business expenses incurred or to be incurred in the Ordinary Course ordinary course of Businessbusiness;
(iix) The Seller the Transferor has not entered into any employment contract with any of its officers or any collective bargaining agreementagreement with respect to the Aseptic Business, written or oral, or modified the terms of any existing such contract or agreement other than agreement;
(x) the Transferor has not granted any increase in accordance the compensation payable or to become payable to any of its officers with their respective terms or respect to the Aseptic Business, except for annual increases in the ordinary course of business consistent with past practice;
(jxi) The Seller the Transferor has not granted adopted, amended, modified or terminated any increase in excess of two percent (2%) in bonus, profit-sharing, incentive, severance or other plan, contract or commitment for the base compensation benefit of any of its officers with respect to the Transferring EmployeesAseptic Business (or taken any such action with respect to any other Employee Benefit Plan);
(kxii) The Seller the Transferor has not made any other material change in material employment terms for any of its officers with respect to the Transferring Employees Aseptic Business outside the Ordinary Course ordinary course of Businessits business;
(lxiii) The Seller the Transferor has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than experienced any material adverse change in the Ordinary Course business, operations or financial condition of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesthe Aseptic Business; and
(nxiv) The Seller the Transferor has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Month End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in since the Ordinary Course of Business, since that dateMost Recent Fiscal Month End:
(ai) The Seller no Target has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller no Target has not entered into any material agreement, contract, lease, or license that would be required to be disclosed on Section 4(p) of the Disclosure Schedule, outside the Ordinary Course of Business;
(ciii) The Seller no Party (including Targets) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller any Target is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller no Target has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, intangible (other than in the Ordinary Course of BusinessPermitted Encumbrances);
(ev) The Seller no Target has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller no Target has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Targets have not created, incurred, assumed, or guaranteed more than $25,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) no Target has transferred, assigned, or granted any license license, sublicense, agreement, covenant not to s▇▇, or sublicense of any rights under or permission with respect to any material Target Intellectual Property included in the AssetsProperty;
(gix) The Seller there has not been no change made or authorized in the certificate of formation or operating agreement of any Target except as otherwise required by Applicable Law;
(x) no Target has issued, sold, or otherwise disposed of any of its equity, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its equity;
(xi) no Target has declared, set aside, or paid any dividend or made any distribution with respect to its equity (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity (other than tax distributions pursuant to the governing documents of any Target and disclosed to Buyer in writing);
(xii) no Target has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller no Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller no Target has not entered into or terminated any employment contract providing for annual compensation in excess of $50,000 or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms agreement, or consistent with past practicebecome bound by any collective bargaining relationship;
(jxv) The Seller no Target has not granted any material increase in excess of two percent (2%) in the base compensation of any of the Transferring Employeesits directors, officers, and employees;
(kxvi) The Seller no Target has not made 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, and employees (or taken any such action with respect to any other change in material employment terms for any of the Transferring Employees Employee Benefit Plan) outside the Ordinary Course of Business;
(lxvii) The Seller no Target has not conducted made any other material change in employment terms for any of its cash management customs directors, officers, and practices employees outside the Ordinary Course of Business;
(includingxviii) no Target has implemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, but not limited toas amended, or any similar state, local, or non-U.S. law, regulation, or ordinance;
(xix) no Target has made any loans or advances of money (other than the timing advancement of collection of receivables and payment of payables expenses to employees and other current liabilities) and maintained its books and records other than service providers in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesBusiness; and
(nxx) The Seller no Target has not committed to any of the foregoing.
Appears in 1 contract
Sources: Securities Purchase and Exchange Agreement (TerrAscend Corp.)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth on the Disclosure Schedule, 2018since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller except solely in connection with the cessation of Target's business activities, and the closure of Target's operations, in Monterrey, Mexico, Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $25,000 or outside the Ordinary Course of Business;
(ciii) The Seller except solely in connection with the cessation of Target's business activities, and the closure of Target's operations, in Monterrey, Mexico, no party (including Target) has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any material agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) to which the Seller Target is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller Target has not imposed or permitted to exist any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Businessexcept for Permitted Encumbrances;
(ev) The Seller Target has not made any material capital expenditures in respect expenditure (or series of the Business related capital expenditures) either involving more than $25,000 or outside the Ordinary Course of Business;
(fvi) The Seller Target 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);
(vii) Target 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;
(viii) Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) Target has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims);
(x) Target has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller there has been no change made or authorized in the Certificate of Formation or any limited liability company agreement of Target;
(xii) Target has not issued, sold, or otherwise disposed of any of its membership interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its membership interests;
(xiii) Target has not declared, set aside, or paid any distribution in respect of its membership interests (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its membership interests;
(xiv) Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxv) The Seller Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixvi) The Seller Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxvii) The Seller Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its managers, officers, and employees outside the Ordinary Course of Business;
(lxviii) The Seller Target has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs managers, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xix) except in connection with the cessation of Target's business activities, but and the closure of Target's operations, in Monterrey, Mexico, Target has not limited tomade any other material change in employment terms for any of its managers, the timing of collection of receivables officers, and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxx) The Seller Target has not changed made or pledged to make any accounting policy charitable or tax elections other capital contribution outside the Ordinary Course of Business;
(xxi) Target has not paid any amount to any third party with respect to any Liability (including any costs and expenses Target has incurred or practicesmay incur in connection with this Agreement and the transactions contemplated hereby) that would not constitute an Assumed Liability if in existence as of the Closing;
(xxii) Target has not discharged a material Liability or Lien outside the Ordinary Course of Business;
(xxiii) Target has not made any loans or advances of money;
(xxiv) Target has not disclosed any Confidential Information, except under customary nondisclosure agreements; and
(nxxv) The Seller Target has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December the Most Recent Fiscal Year End and except for the spin-off of the Seller's business from ▇▇▇▇▇▇ International on March 31, 20182000, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:date (or any other date specifically provided for below):
(ai) The the Seller has not sold, leased, transferred, or assigned any assets used in of the Business' assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Businessordinary course;
(bii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) relating to the Business either involving more than $25,000 (other than contracts on the Seller's standard form purchase order set forth in Section 3(q) of the Disclosure Schedule) or outside the Ordinary Course of Businessordinary course;
(ciii) The Seller no party has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contract, lease, or license (or Permit series of related agreements, contracts, leases, and licenses) relating to the Business and involving more than $25,000 to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The the Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gv) The the Seller has not experienced any material damage, destruction, or loss (normal wear and tear excepted) (whether or not covered by insurance) to the Assetsany Acquired Asset;
(hvi) The the Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees the Transferred Employees outside the Ordinary Course of Businessordinary course;
(ivii) The the Seller has not entered into any employment contract or collective bargaining agreementagreement relating to any Transferred Employee, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jviii) The the Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of Transferred Employee outside the Transferring Employeesordinary course;
(kix) The since April 1, 2000, the Seller 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 the Transferred Employees or taken any such action with respect to any other Employee Benefit Plan that is not in the ordinary course of business or that has not been disclosed to the Buyer in the Disclosure Schedule;
(x) the Seller has not made any other change in material employment terms for any of the Transferring Transferred Employees outside the Ordinary Course of Businessordinary course;
(lxi) The Seller there has not conducted its cash management customs and practices (includingbeen any other material occurrence, but not limited toevent, incident, action, failure to act, or transaction outside the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in ordinary course involving the Ordinary Course of Business consistent with past custom and practice;Business; or
(mxii) The Seller has not changed any accounting policy or tax elections or practices; and
(n) The the Seller has not committed to any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Edwards Lifesciences Corp)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth in Section 3.9 of the Parent Disclosure Schedule, 2018since the Parent Most Recent Fiscal Year End, there has not been any Parent Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(a) The Seller neither Parent nor its Subsidiaries has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller neither Parent nor its Subsidiaries has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller no party (including Parent or any of its Subsidiaries) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Parent or any of its Subsidiaries is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(d) The Seller neither Parent nor its Subsidiaries has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller neither Parent nor its Subsidiaries has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller neither Parent nor its Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(g) Except in the ordinary course of business and/or as disclosed in the Parent Disclosure Schedule Parent and its Subsidiaries have not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(h) neither Parent nor its Subsidiaries has transferred, assigned, or granted any license license, sublicense, agreement, covenant not to s▇▇, or sublicense of any rights under or permission with respect to any material Intellectual Property included in the AssetsProperty;
(gi) The Seller there has not been no change made or authorized in the charter or bylaws of Parent or any of its Subsidiaries;
(j) neither Parent nor its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(k) neither Parent nor its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(l) neither Parent nor its Subsidiaries has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hm) The Seller neither Parent nor its Subsidiaries has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(in) The Seller neither Parent nor its Subsidiaries has not entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms agreement, or consistent with past practicebecome bound by any collective bargaining relationship;
(jo) The Seller neither Parent nor its Subsidiaries has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lp) The Seller neither Parent nor its Subsidiaries has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(q) neither Parent nor its Subsidiaries has made any other material change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mr) The Seller neither Parent nor its Subsidiaries has not changed implemented any accounting policy employee layoffs requiring notice under the WARN Act;
(s) neither Parent nor its Subsidiaries has made any loans or tax elections or practicesadvances of money; and
(nt) The Seller neither Parent nor its Subsidiaries has not committed to any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Bio-Matrix Scientific Group, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Target and its Subsidiaries taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller none of the Target and its Subsidiaries has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement none of the Target and the Transaction Documents, the Seller its Subsidiaries has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including any of the Target and its Subsidiaries) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which any of the Seller Target and its Subsidiaries is a party or by which it any of them is bound bound;
(iv) none of the Target and its Subsidiaries has granted or imposed any, and there are no, Security Interest on any of its assets, tangible or intangible;
(v) none of the Target and its Subsidiaries has made any capital expenditures outside the Ordinary Course of Business;
(vi) none of the Target and its Subsidiaries has made any capital investment in, or any loan to, any other Person, other than in accordance with their respective terms or the extension of trade credit in the Ordinary Course of Business;
(dvii) The Seller has the Target and its Subsidiaries have not imposed any Lien upon any of the Assetscreated, tangible incurred, assumed, or intangible, other guaranteed more than $25,000 in the Ordinary Course of Businessaggregate indebtedness for borrowed money and capitalized lease obligations;
(eviii) The Seller has not made any material capital expenditures in respect none of the Business outside the Ordinary Course of Business;
(f) The Seller Target and its Subsidiaries has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in outside the AssetsOrdinary Course of Business;
(gix) The Seller there has not been no change made or authorized in the constitutional documents of any of the Target and its Subsidiaries with the exception of an amendment to the Articles of the Target to reduce the number of directors from seven to six;
(x) none of the Target and its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock except under the Option Plan (all of which are set forth in Section 4(b) of the Disclosure Schedule);
(xi) none of the Target and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) none of the Target and its Subsidiaries has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property or assets;
(hxiii) The Seller none of the Target and its Subsidiaries has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Businessand employees;
(ixiv) The Seller none of the Target and its Subsidiaries has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceexcept an employment contract for ▇▇▇▇ ▇▇▇▇, a copy of which has been provided to Buyer;
(jxv) The Seller none of the Target and its Subsidiaries has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller none of the Target and its Subsidiaries has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any Employee Benefit Plan);
(xvii) none of the Target and its Subsidiaries has made any other change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxviii) The Seller none of the Target and its Subsidiaries has not changed any accounting policy delayed or tax elections or practicespostponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business; and
(nxix) The Seller none of the Target and its Subsidiaries has not committed to any of the foregoing;
(xx) there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of the Target and its Subsidiaries except as set out in Section 4(h)(xx) of the Disclosure Schedule.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31the Most Recent Fiscal Year End, 2018, the Company has operated in the normal and ordinary course and consistent with past practice and there has have not been any events that, individually or in the aggregate, have had or could have a Material Adverse ChangeEffect. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth on SECTION 3.8 of the Disclosure Schedule 4.9 or in Schedule, the Ordinary Course of Business, since that dateCompany has not:
(a) The Seller has not issued, sold, leased, transferredor otherwise disposed of any of its capital stock, or assigned granted any assets used in the Businessoptions, tangible warrants, or intangibleother rights to purchase or obtain (including upon conversion, outside the Ordinary Course exchange, or exercise) any of Businessits capital stock;
(b) Except for this Agreement and the Transaction Documentsdeclared, the Seller has not entered into any agreement, contract, leaseset aside, or license outside the Ordinary Course paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of Businessits capital stock;
(c) The Seller has not acceleratedsold, terminatedleased or otherwise disposed of or agreed to sell, made material modifications to, lease or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;
(h) The Seller has not made any loan to, or entered into any other transaction withotherwise dispose of, any of its directorsassets, managersproperties, officersrights or claims, contractorsexcept for sales of inventory in the ordinary course of business, consultants or employees outside the Ordinary Course of Business;
(i) The Seller has not entered into any employment contract or collective bargaining agreementin customary quantities, written or oral, or modified the and at prices and on terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
(d) merged or consolidated with or agreed to merge or consolidate with, or purchased or agreed to purchase any assets of, or otherwise acquired, any corporation, partnership, limited liability company or other business organization or division thereof;
(e) had any Security Interest placed upon any of its assets, tangible or intangible;
(f) failed to maintain, keep, and preserve all of its properties (tangible and intangible) necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear excepted;
(g) terminated or agreed to terminate any Material Contract (as defined in Section 3.17 below);
(h) failed to comply in all material respects with applicable laws, rules, regulations, and orders relating to its business, such compliance to include, without limitation, paying before the same become delinquent all Taxes, assessments, and governmental charges imposed upon it or upon its property;
(i) forgiven or canceled any debts or claims, or waived any material rights;
(j) The Seller has not granted made any increase in excess capital expenditure (or series of two percent (2%related capital expenditures) in either involving more than $25,000 or outside the base compensation ordinary course of any of the Transferring Employeesbusiness;
(k) The Seller has not made entered into, amended or terminated or agreed to enter into, amend or terminate any employment, bonus, incentive, severance or retirement contract, plan or arrangement, or increased or agreed to increase any salary or other change in material employment terms for form of compensation or benefits payable or to become payable to any of the Transferring Employees outside the Ordinary Course of Businessemployee;
(l) The Seller has not conducted changed or authorized any change in its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and Charter or By-Laws or other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practicegoverning instruments;
(m) The Seller has not changed suffered any accounting policy loss of any significant independent contractor, customer or tax elections account of the Company (other than in the ordinary course of business or practices; andspecific projects for customers);
(n) The Seller has not committed secured any obligation or liability to any of its officers, directors, stockholders or employees or made any loans or advances to any of its officers, directors, stockholders or employees except normal compensation and expense allowances payable to officers and employees;
(o) suffered any labor trouble or claim of unfair labor practices;
(p) suffered any material loss of personnel or made any change in the foregoingofficers of the Company;
(q) made any change in accounting methods or practices;
(r) had any claim or dispute with any stockholder of the Company; or
(s) taken or omitted to take any action which could have a Material Adverse Effect.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller no party (including Triant Holdings and any of its Subsidiaries) has not soldaccelerated, leasedterminated, transferredmodified, or assigned cancelled any assets used in the Businessagreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than USD$25,000 to which Triant Holdings or any of its Subsidiaries is a party or by which any of them is bound;
(ii) neither Triant Holdings nor any of its Subsidiaries has imposed or permitted to exist any Lien upon any of its assets, tangible or intangible;
(iii) neither Triant Holdings nor any of its Subsidiaries has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation;
(iv) neither Triant Holdings nor any of its Subsidiaries has delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(bv) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon neither Triant Holdings nor any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller its Subsidiaries has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gvi) The Seller neither Triant Holdings nor any of its Subsidiaries has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hvii) The Seller has not made any loan to, or entered into any other transaction with, neither Triant Holdings nor any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Business;
(i) The Seller Subsidiaries has not entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jviii) The Seller neither Triant Holdings nor any of its Subsidiaries has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lix) The Seller neither Triant Holdings nor any of its Subsidiaries has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan); and
(x) neither Triant Holdings nor any of its Subsidiaries has made any other change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(m) The Seller has not changed any accounting policy or tax elections or practices; and
(n) The Seller has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth in Section 4(h) of the Disclosure Schedule, 2018since the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Company taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller except for assets sold in the aggregate amount of less than US$20,000, the Company has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Company has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Company) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company is a party or by which it is bound bound;
(iv) the Company has not granted or imposed any, and there are no, Security Interests on any of its assets, tangible or intangible;
(v) the Company has not made any capital expenditures outside the Ordinary Course of Business;
(vi) the Company has not made any capital investment in, or any loan to, any other Person, other than in accordance with their respective terms or the extension of trade credit in the Ordinary Course of Business;
(dvii) The Seller the Company has not imposed any Lien upon any of the Assetscreated, tangible incurred, assumed, or intangible, other guaranteed more than $25,000 in the Ordinary Course of Businessaggregate indebtedness for borrowed money and capitalized lease obligations;
(eviii) The Seller the Company has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in outside the AssetsOrdinary Course of Business;
(gix) The Seller there has been no change made or authorized in the Certificate of Incorporation or Bylaws of the Company;
(x) the Company has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property or assets;
(hxiii) The Seller the Company has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Businessand employees;
(ixiv) The Seller the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller the Company has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller the Company has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any Employee Benefit Plan);
(xvii) the Company has not made any other change in employment terms for any of its directors, but officers, and employees outside the Ordinary Course of Business;
(xviii) the Company has not limited to, delayed or postponed the timing of collection of receivables and payment of payables accounts payable and other current liabilitiesliabilities outside the Ordinary Course of Business;
(xix) and maintained its books and records the Company has not paid or agreed to pay any amount to any Company Indemnifying Party or any Affiliate, or to any person on behalf of any of them, other than in the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxx) The Seller has not changed any accounting policy or tax elections or practices; and
(n) The Seller the Company has not committed to any of the foregoing; and
(xxi) with the exception of transactions contemplated by or referenced in this Agreement, there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving the Company.
Appears in 1 contract
Sources: Merger Agreement (Pivotal Corp)
Events Subsequent to Most Recent Fiscal Year End. Since December 31the Most Recent Fiscal Year End, 2018except as set forth in Section 6(i) of the Disclosure Schedule, there has not been any transaction entered into by Seller outside of the Ordinary Course of Business and Seller has not suffered any Material Adverse ChangeEffect. Without limiting the generality of the foregoing, except as set forth on in Section 6(i) of the Disclosure Schedule 4.9 or in the Ordinary Course of BusinessSchedule, since that datethe Most Recent Fiscal Year End:
(ai) The Seller has not sold, leased, transferred, or assigned any assets used in the Businessassets, tangible or intangible, with a fair market value of $5,000 or more, outside the Ordinary Course of Business, and Seller has disclosed in writing to Buyer any sale, lease, transfer or assignment of any assets, tangible or intangible, of Seller made in the Ordinary Course of Business where such assets have a fair market value of $5,000 or more;
(bii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no Lien has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not been imposed any Lien upon any of the AssetsSeller’s assets, tangible or intangible, other than in the Ordinary Course of Business;
(eiv) The Seller has not made cancelled, compromised, waived, or released any material capital expenditures in respect right or claim (or series of the Business related rights and claims) outside the Ordinary Course of Business, with the exception of certain waivers and releases in favor of Silicon Valley Bank, Gold Hill and the Series I Investors;
(fv) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in of the AssetsBusiness IP;
(gvi) The there has been no change made or authorized in the certificate of incorporation, bylaws or other charter documents of Seller;
(vii) Seller has not experienced any material damageissued, destructionsold, or loss otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (whether including upon conversion, exchange, or not covered by insuranceexercise) to the Assetsany of its capital stock;
(hviii) The Seller has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(ix) Seller has not made any loan to, loans or entered into any other transaction with, any advances of its directors, managers, officers, contractors, consultants or employees money outside of the Ordinary Course of Business;
(i) The Seller has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
(j) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practices; and
(nx) The Seller has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse ChangeEffect. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The the Seller has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, other than for fair consideration in the Ordinary Course of Business;
(ii) the Seller has not entered into any Contract, lease, or license (or series of related Contracts, leases, and licenses) either involving more than $10,000 or outside the Ordinary Course of Business;
(biii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contractContract, lease, or license (or Permit relating to the Business series of related Contracts, leases, and licenses) involving more than $10,000 to which the Seller is a party or by which it the Seller is bound bound;
(iv) the Seller has not issued any note, bond, or other than in accordance with their respective terms debt security or in created, incurred, assumed, or guaranteed any Indebtedness for borrowed money or capitalized lease obligation;
(v) the Seller has not delayed or postponed the payment of accounts payable or other Liabilities outside the Ordinary Course of Business, has not accelerated the collection of accounts receivable outside the Ordinary Course of Business and has maintained its inventory at levels within the Ordinary Course of Business;
(dvi) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;
(h) The Seller has not made any loan to, or received any loan from, or entered into any other transaction with, any of its stockholders, directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Businessand employees;
(ivii) The the Seller has not entered into any employment contract Contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract Contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jviii) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lix) The no material supplier or customer has cancelled, materially modified or terminated or given notice of its intent to terminate either a particular Contract or its relationship with the Seller or decreased materially its supply, usage or purchase of the service or products of the Seller, nor does it have, to its or ▇▇. ▇▇▇▇▇▇▇▇▇’▇ Knowledge, have any plan or intention to do any of the foregoing;
(x) there has not conducted its cash management customs and practices (includingbeen any other material occurrence, but not limited toevent, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesinvolving the Seller; and
(nxi) The the Seller has not committed to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 20182016, Target and each Subsidiary has conducted its operations in the Ordinary Course of Business and there has not been any occurrence, change, development or event that has had or would reasonably be expected to have a Material Adverse ChangeEffect. Without limiting the generality of the foregoing, since December 31, 2016, except as set forth on Disclosure Schedule 4.9 4(j):
(i) Neither Target nor any Subsidiary has amended its certificate of formation, operating agreement or other organizational documents.
(ii) Except in the Ordinary Course of Business, since that date:
(a) The Seller neither Target nor any Subsidiary has not abandoned or let lapse, sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible including leases, licenses, agreements, or intangible, outside the Ordinary Course of Business;Intangible Assets.
(biii) Except for this Agreement and the Transaction Documents, the Seller Neither Target nor any Subsidiary has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;Business (except for this Agreement).
(civ) The Seller Neither Target nor any Subsidiary has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business Material Contract outside the Ordinary Course of Business;.
(fv) The Seller Neither Target nor any Subsidiary has not transferredhad imposed on it any Lien on any of its assets, assignedtangible or intangible, or made any capital expenditures in excess of $100,000.
(vi) Neither Target nor any Subsidiary has issued, sold, or otherwise disposed of any of its equity interests, or granted any license options, warrants, equity-based awards or sublicense other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of any rights under or with respect to any Intellectual Property included in the Assets;its equity interests.
(gvii) The Seller Neither Target nor any Subsidiary has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;affecting its properties, assets, business, or prospects.
(hviii) The Seller Neither Target nor any Subsidiary has not advanced any money or other property or made any loan to, or entered into any other transaction with, any of its current or former managers, directors, managers, officers, contractors, consultants employees or Affiliates.
(ix) Except for the execution of standard nondisclosure agreements with employees outside in the Ordinary Course of Business;
(i) The Seller , neither Target nor any Subsidiary has not entered into any employment contract or similar Contract or any collective bargaining agreement, written or oral, or modified the terms of any such existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;agreement.
(jx) The Seller Neither Target nor any Subsidiary has not granted (or promised to grant) any increase in excess of two percent (2%) in the base compensation or fringe benefits of any of the Transferring Employees;its current or former directors, officers, and employees, or adopted, amended, modified, or terminated (or announced or otherwise committed to any such adoption, amendment, modification, or termination) any Employee Benefit Plan.
(kxi) The Seller Neither Target nor any Subsidiary has not made any loans or advances of money or changed its existing credit arrangements with any bank or other financial institution.
(xii) Neither Target nor any Subsidiary has made any change in material employment terms for accounting methods or practices or any of the Transferring Employees outside change in depreciation or amortization policies or rates.
(xiii) Neither Target nor any Subsidiary has experienced any adverse change in its condition (financial or otherwise), assets, liabilities, member’s equity, business, earnings or prospects except changes in the Ordinary Course of Business;, none of which has been or will have a Material Adverse Effect or otherwise be material to Target or such Subsidiary.
(lxiv) The Seller Neither Target nor any Subsidiary has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy agreed or tax elections or practices; and
(n) The Seller has not committed to any of the foregoing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MSA Safety Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31the Most Recent Fiscal Year End, 2018to the Knowledge of the Seller, there has not been any Material Adverse Changeadverse change in the business, financial condition, operations, results of operations, or future prospects of the Target taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and to the Transaction DocumentsKnowledge of the Seller, the Seller Target has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Target) has not accelerated, terminated, made material modifications tomodified, or canceled any agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) involving more than $5,000 to which the Seller Target is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller except as expressly described in Section 4(e) of the Disclosure Schedule, the Target has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller except as expressly described in Section 4(g)(v) of the Disclosure Schedule, the Target has not made any material capital expenditures in respect expenditure (or series of the Business related capital expenditures) outside the Ordinary Course of Business;
(fvi) The Seller the Target has not transferredmade any capital investment in, assignedany 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 $5,000 or outside the Ordinary Course of Business;
(vii) the Target 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 either involving more than $5,000 singly or $10,000 in the aggregate;
(viii) the Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) the Target has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business;
(x) the Target has not granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller there has been no change made or authorized in the charter or bylaws of the Target;
(xii) the Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xiii) the Target has not declared, set aside, or paid any dividend or made any distributions with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock; provided, however, that effective February 23, 1994, the Target declared a dividend in the amount of $227.50 per Target Share payable no later than October 31, 1994 to holders of record of the Target Shares on February 23, 1994, which the Buyer acknowledges the Target is obligated to pay to the extent that payment does not result in a breach of Section 4(g)(xxii), or would not have resulted in a breach of Section 4(g)(xxii) if made on the Closing Date and not before.
(xiv) the Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxv) The Seller the Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixvi) The Seller except as expressly described in Section 4(g) (xvi) of the Disclosure Schedule, the Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice(such representation and warranty by the Seller, as to employment agreements being limited to the Knowledge of the Seller);
(jxvii) The Seller except as expressly described in Section 4(g) (xvii) of the Disclosure Schedule, the Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and management employees outside the Ordinary Course of Business;
(lxviii) The Seller except as expressly described in Section 4(w) of the Disclosure Schedule, the Target has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xix) the Target has not made any other change in employment terms for any of its directors, but officers, and employees outside the Ordinary Course of Business;
(xx) the Target has not limited tomade or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(xxi) there has not been any other occurrence, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in event, incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom and practiceinvolving the Target, which has or will result in any adverse change in the business, financial condition, results of operations, or future prospects of the Target taken as a whole;
(mxxii) The Seller the Target has not changed taken any accounting policy or tax elections or practicesaction(s) which has caused the Shareholder's equity of the Target to be less than $2,000,000; and
(nxxiii) The Seller the Target has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as disclosed in §3(i) of the Disclosure Schedule, 2018since the Most Recent Fiscal Year End, the Company and each Subsidiary has conducted its business in the ordinary and usual course consistent with past practices and there has not been occurred any Material Adverse Changematerial adverse change in the condition (financial or otherwise), results of operations, properties, assets, liabilities, business or prospects of the Company (or Subsidiary, as the case may be). Without limiting the generality of the foregoing, except as set forth on in §3(i) of the Disclosure Schedule 4.9 or in the Ordinary Course of BusinessSchedule, since that date:
the Most Recent Fiscal Year End, the Company has not, nor has any Subsidiary: (a) The Seller has not soldissued, leased, transferredsold or authorized for issuance or sale, or assigned redeemed, purchased or otherwise acquired, directly or indirectly, shares of any assets used in the Businessclass of its securities or any subscriptions, tangible options, warrants, rights or intangibleconvertible securities, outside the Ordinary Course or entered into any agreements or commitments of Business;
any character obligating it to take any of such actions; (b) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller has not experienced any material damage, destructiondestruction or loss, or loss (whether or not covered by insurance, which has had or could have an adverse effect on any of its properties, assets, business or prospects; (c) voluntarily or involuntarily sold, transferred, surrendered, abandoned or disposed of any of its assets or property rights (tangible or intangible), other than in the ordinary course of business consistent with past practices to any Person other than any Seller or an Affiliate of a Seller; (d) purchased or otherwise acquired any property or assets other than in the Assets;
ordinary course of business consistent with past practices from any Person other than any Seller or an Affiliate of a Seller; (he) The Seller has not granted or made any mortgage or pledge or subjected itself or any of its properties or assets to any Security Interest, except liens for taxes not currently due and except as has been paid, satisfied in full and released (of record, if recorded) as of the Closing Date; (f) made any capital investment in, loan to, or acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions); (g) issued any note, bond, or other debt security or created, incurred or assumed any Indebtedness, except in the ordinary course of business consistent with past practices, but in no event in an aggregate amount exceeding the amount shown on the Most Recent Fiscal Year End balance sheet, except as has been paid, satisfied in full and released (of record, if recorded) as of the Closing Date; (h) made or committed to make any capital expenditures in excess of $50,000 in the aggregate; (i) become subject to any Guaranty, except as has been satisfied and released as of the Closing Date; (j) except for base compensation and reimbursement of business expenses paid to Sellers or Sellers' Affiliates for services rendered to the Company pursuant to existing compensation arrangements, applied any of its assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount payable directly or indirectly to or for the benefit of any Seller or any Affiliate of a Seller or to the prepayment of any such amounts; (k) entered into any other transaction withwith any Seller, any Affiliate of its a Seller or any of the Company's directors, managersofficers or employees; (l) granted any increase in the compensation payable or to become payable to directors, officers, contractorsemployees or others performing services for the Company (including, consultants without limitation, any such increase pursuant to any commission, bonus, pension, profit-sharing or employees outside other plan or commitment), except, in the Ordinary Course case of Business;
non-managerial employees, for increases in the ordinary course of business which are not material in the aggregate; (im) The Seller has not entered into any employment contract or agreement, collective bargaining agreement, written agreement or oralother agreement which would be a Material Agreement (as hereinafter defined), or modified the terms of amended or terminated any existing such contract agreement or agreement Material Agreement, nor has any other party thereto taken any such action; (n) experienced any strike, work stoppage or slowdown; (o) altered the manner of keeping its books, accounts or records, or changed in any manner the accounting practices therein reflected; (p) disclosed any proprietary or confidential information to any third party other than the Purchaser or its Affiliates and others who are subject to confidentiality agreements and listed in accordance with their respective terms §3(i)(p) of the Disclosure Schedule; (q) taken any other action or consistent with past practice;
(j) The Seller has not granted experienced any increase in excess of two percent (2%) in the base compensation other event or condition of any character which has had or could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, assets, liabilities, properties, business or prospects of the Transferring Employees;
Company, or on employee, customer or supplier relations; (kr) The Seller has not made any other change in material employment terms for any of delayed or postponed the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records accounts payable, wages or Liabilities other than in the Ordinary Course ordinary course of Business consistent business; (s) made or pledged to make any charitable or other contribution outside the ordinary course of business; (t) ceased doing business with past custom and practice;
any customer, sales to which exceeded $50,000 during the fiscal year ended as of the Most Recent Fiscal Year End; or (mu) The Seller has not changed any accounting policy agreed, whether in writing or tax elections or practices; and
(n) The Seller has not committed otherwise, to do any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Able Telcom Holding Corp)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Month End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in since the Ordinary Course of Business, since that dateMost Recent Fiscal Month End:
(ai) The Seller no Target has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller no Target has not entered into any material agreement, contract, lease, or license that would be required to be disclosed on Section 4(p) of the Disclosure Schedule, outside the Ordinary Course of Business;
(ciii) The Seller no Party (including Targets) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller any Target is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller no Target has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, intangible (other than in the Ordinary Course of BusinessPermitted Encumbrances);
(ev) The Seller no Target has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller no Target has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Targets have not created, incurred, assumed, or guaranteed more than $25,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) no Target has transferred, assigned, or granted any license license, sublicense, agreement, covenant not to ▇▇▇, or sublicense of any rights under or permission with respect to any material Target Intellectual Property included in the AssetsProperty;
(gix) The Seller there has not been no change made or authorized in the certificate of formation or operating agreement of any Target except as otherwise required by Applicable Law;
(x) no Target has issued, sold, or otherwise disposed of any of its equity, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its equity;
(xi) no Target has declared, set aside, or paid any dividend or made any distribution with respect to its equity (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity (other than tax distributions pursuant to the governing documents of any Target and disclosed to Buyer in writing);
(xii) no Target has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller no Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller no Target has not entered into or terminated any employment contract providing for annual compensation in excess of $50,000 or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms agreement, or consistent with past practicebecome bound by any collective bargaining relationship;
(jxv) The Seller no Target has not granted any material increase in excess of two percent (2%) in the base compensation of any of the Transferring Employeesits directors, officers, and employees;
(kxvi) The Seller no Target has not made 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, and employees (or taken any such action with respect to any other change in material employment terms for any of the Transferring Employees Employee Benefit Plan) outside the Ordinary Course of Business;
(lxvii) The Seller no Target has not conducted made any other material change in employment terms for any of its cash management customs directors, officers, and practices employees outside the Ordinary Course of Business;
(includingxviii) no Target has implemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, but not limited toas amended, or any similar state, local, or non- U.S. law, regulation, or ordinance;
(xix) no Target has made any loans or advances of money (other than the timing advancement of collection of receivables and payment of payables expenses to employees and other current liabilities) and maintained its books and records other than service providers in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesBusiness; and
(nxx) The Seller no Target has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Seller outside the Ordinary Course of Business. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(a) The 3.8.1 the Seller has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of BusinessBusiness except as to the Accumulated Adjustments Account distributions the Seller will make to ▇'▇▇▇▇▇▇ prior to Closing in the amounts set forth in Section 3.8.1 of the Disclosure Schedule;
(b) Except for this Agreement and the Transaction Documents, 3.8.2 the Seller has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
3.8.3 no party (cincluding the Seller) The Seller has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(d) The 3.8.4 the Seller has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The 3.8.5 the Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The 3.8.6 the Seller has not transferred, assignedmade any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
3.8.7 the Seller has not created, incurred, assumed, or guaranteed more than $5,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
3.8.8 the Seller has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included Property;
3.8.9 there has been no change made or authorized in the Assetscharter or bylaws of the Seller;
3.8.10 the Seller has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (gincluding upon conversion, exchange, or exercise) The any of its capital stock;
3.8.11 the Seller has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
3.8.12 the Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(h) The 3.8.13 the Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(i) The 3.8.14 the Seller has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(j) The 3.8.15 the Seller has not granted any increase in excess of two percent (2%) in the base compensation of ▇'▇▇▇▇▇▇ or any of its directors, officers, and employees outside the Transferring EmployeesOrdinary Course of Business except as set forth in Schedule 3.8.15 of the Disclosure Schedule;
3.8.16 the Seller 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, and employees (k) The or taken any such action with respect to any other Employee Benefit Plan);
3.8.17 the Seller has not made any other material change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(l) The 3.8.18 the Seller has not conducted its cash management customs paid any amount to any third party with respect to any liability or obligation (including any costs and practices (including, but not limited to, expenses the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has incurred or may incur in connection with this Agreement and the transactions contemplated hereby) which would not changed any accounting policy or tax elections or practicesconstitute an Assumed Liability if in existence as of the Closing; and
(n) The 3.8.19 the Seller has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December May 31, 20182011, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Company has not has sold, leased, transferred, or assigned any assets used in the Businessassets, tangible or intangible, in excess of the Threshold Amount outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Company has not entered into any agreement, contract, lease, or license in excess of the Threshold Amount outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Company) has not accelerated, terminated, made material modifications to, or canceled cancelled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company is a party or by which it the Company is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller the Company has not imposed had any Lien imposed upon any of the AssetsCompany’s assets, tangible or intangible, other than in intangible (excluding any Lien to be released upon payment of the Ordinary Course of BusinessDebts To Be Paid At Closing);
(ev) The Seller the Company has not made any material capital expenditures in respect excess of the Business Threshold Amount outside the Ordinary Course of Business;
(fvi) The Seller the Company has not made any capital investment in, or any loan to, any other Person in excess of the Threshold Amount outside the Ordinary Course of Business;
(vii) the Company has not created, incurred, assumed, or guaranteed indebtedness for borrowed money, and capitalized lease obligations, in excess of the Threshold Amount;
(viii) the Company has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in outside the AssetsOrdinary Course of Business;
(gix) The Seller there has been no change made or authorized in the charter or bylaws of Company;
(x) the Company has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to its property in excess of the AssetsThreshold Amount;
(hxiii) The Seller the Company has not made any loan to, or entered into any other transaction with, any of its directors, managers, directors or officers, contractorsand the Company has not made any loan to, consultants or entered into any other transaction with, any of its employees outside the Ordinary Course of Business;
(ixiv) The Seller the Company has not entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms agreement, or consistent with past practicebecome bound by any collective bargaining relationship;
(jxv) The Seller the Company has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made its directors or officers, or granted any other change increase in material employment terms for base compensation to any of the Transferring Employees Company’s employees outside the Ordinary Course of Business;
(lxvi) The Seller the Company has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xvii) the Company has not made any other material change in employment terms for any of its directors or officers, but and Company has not limited tomade any other material change in employment terms for any of its employees outside the Ordinary Course of Business;
(xviii) the Company has not implemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar state, local, or non-U.S. law, regulation, or ordinance (collectively, the timing of collection of receivables and payment of payables and “WARN Act”);
(xix) the Company has not changed its normal business practices or taken any other current liabilities) and maintained its books and records other than in action outside the Ordinary Course of Business consistent with past custom and practicein order to generate Cash;
(mxx) The Seller the Company has not changed made any accounting policy loans or tax elections or practicesadvances of money; and
(nxxi) The Seller the Company has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse ChangeChange in Target. Without Specifically, without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as contemplated in this Agreement or as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of BusinessDisclosure Schedules, since that datethere has not been any:
(ai) The Seller has not soldchange in accounting methods, leased, transferredprinciples, or assigned any assets used practices by Target, except as required by law or by generally applicable changes instituted in the Business, tangible or intangible, outside the Ordinary Course of Businessaccounting profession;
(bii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller has not experienced any material damage, destruction, destruction or loss (whether or not covered by insurance) to adversely affecting the Assets;
(h) The Seller has not made any loan to, tangible Assets or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Business;
(iiii) The Seller has not entered cancellation of any material indebtedness or waiver or release of any material right or claim of Target;
(iv) increase in the rate of compensation payable or to become payable to, any bonus, incentive compensation, service award or other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of, any director, officer or other employee, except as provided in any employment agreement (including any union contract) between Target and any such persons or in any employee plan, and except for any increases in the normal course of business;
(v) addition to or modification of the Employee Benefit Plans, arrangements or practices affecting the officers, directors, or employees of Target other than (A) contributions made in accordance with the normal practices of Target, (B) the extension of coverage to such persons who became eligible after the Most Recent Fiscal Year End, or (C) as set forth in the Employee Policy and Procedure Manual, as provided to Buyer prior to the date hereof,
(vi) cancellation or termination of any material Contract or entry into any employment contract Contract which is not in the ordinary course of the business of Target;
(vii) sale, assignment or collective bargaining agreement, written or oral, or modified the terms transfer of any existing such contract or agreement material portion of the Assets, other than in the ordinary course of business, except as approved in writing in advance by Buyer;
(viii) capital expenditure or the execution of any lease or any incurring of liability therefor by Target involving payments in excess of $50,000 or $200,000 in the aggregate with respect to any such expenditure or lease or otherwise not substantially in accordance with their respective terms or consistent with Target's past practice;
(jix) The Seller has not granted any increase in excess of two percent (2%) indebtedness incurred by Target for borrowed money or any commitment to borrow money entered into by Target, or any loans made or agreed to be made by Target except for indebtedness incurred in the base compensation ordinary course of business as part of Target's inventory financing or under the existing working capital line of credit;
(x) revaluation by Target of any of the Transferring EmployeesAssets, including without limitation writing off notes, or writing off accounts receivable except with respect to accounts receivable written off in the ordinary course of business;
(kxi) The payment or declaration of any dividends, distributions with respect to any of Target Shares, or redemption, repurchase or acquisition by Target of any of Target Shares;
(xii) since December 31, 1999, Seller has and Target have not made changed or modified their policies, practices or procedures relative to recording credits or charges to their intercompany receivables and payables. Moreover, since December 31, 1999, Seller and Target have not changed or modified their pricing for intercompany services and any other change in material employment terms for intercompany sales of assets or the assumption of intercompany liabilities; or
(xiii) agreement by Target or Seller to do any of the Transferring Employees outside things described in the Ordinary Course of Business;
preceding clauses (li) The Seller has not conducted its cash management customs and practices through (includingxii), but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practices; and
(n) The Seller has not committed to any of the foregoingas expressly provided herein.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Company Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Company taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller Company has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller The Company has not entered into any material agreement, contract, lease, license or license other arrangement outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Company) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller Company has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller Company has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller Company has not transferred, assignedmade any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) The Company has not created, incurred, assumed, or guaranteed more than $10,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) The Company has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) there has been no change made or authorized to be made in the Certificate of Incorporation or bylaws of the Company;
(x) The Seller Company has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) The Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) The Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property and assets;
(hxiii) The Seller Company has not made any loan to, or entered into any other transaction with, any of its stockholders, directors, managers, officers, contractors, consultants employees or employees Affiliates outside the Ordinary Course of Business;
(ixiv) The Seller Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller Company has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller Company has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xvii) The Company has not made any other material change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesBusiness; and
(nxviii) The Seller Company has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth in SECTION 4.08 of the Disclosure Schedule, 2018since the Most Recent Fiscal Month End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or to the best of Shareholders' Knowledge, future prospects of the Company. Without limiting the generality of the foregoing, except as set forth on at SECTION 4.08 of the Disclosure Schedule 4.9 or in the Ordinary Course of BusinessSchedule, since that such date:
(a) The Seller the Company has not sold, leased, transferred, or assigned any assets used in the Businessmaterial asset, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside (or series of related agreements, contracts, leases, and licenses) involving more than $10,000;
(b) the Ordinary Course Company has not made any capital expenditure (or series of Businessrelated capital expenditures) involving more than $10,000;
(c) The Seller the Company has not acceleratedissued any note, terminated, made material modifications tobond, or canceled other debt security or created, incurred, assumed, or guaranteed any agreement, contract, lease, license indebtedness for borrowed money or Permit relating to the Business and to which the Seller is a party capitalized lease obligation either involving more than $10,000 singly or by which it is bound other than in accordance with their respective terms or $25,000 in the Ordinary Course of Businessaggregate;
(d) The Seller the Company has not imposed any Lien upon any delayed or postponed the payment of the Assets, tangible or intangible, accounts payable and other than in Liabilities outside the Ordinary Course of Business;
(e) The Seller there has been no change made or authorized in the articles or bylaws of the Company, and the Company has not made issued, sold, or otherwise disposed of any material of its capital expenditures in respect stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of the Business outside the Ordinary Course of Businessits capital stock;
(f) The Seller the Company has not transferreddeclared, assignedset aside, or granted paid any license dividend or sublicense of made any rights under or distribution with respect to any Intellectual Property included its capital stock (whether in the Assetscash or in kind);
(g) The Seller the Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(h) The Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Business;
(i) The Seller Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
(j) The Seller agreement, and has not granted any increase in excess of two percent (2%) in the base compensation of any of its directors, officers, and Key Employees (as defined herein), or adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for benefit of any of the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller has not conducted its cash management customs directors, officers, and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesemployees; and
(ni) The Seller the Company has not committed to any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (U S Liquids Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31the Most Recent Fiscal Year End, 2018except as disclosed in Exhibit 7.9, there (i) Prolias has conducted its business only in the Ordinary Course, and (ii) Prolias has not been experienced any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or disclosed in the Ordinary Course of BusinessExhibit 7.9, since that date:
(ai) The Seller Prolias has not sold, leased, transferred, assigned or assigned otherwise disposed of, any assets used in the Businessassets, tangible or intangible, outside the Ordinary Course or, in any event, assets valued in excess of Business$10,000 individually or $25,000 in the aggregate;
(bii) Except for this Agreement and Prolias has not acquired any assets, tangible or intangible, outside the Transaction DocumentsOrdinary Course or, in any event, assets valued in excess of $10,000 individually or $25,000 in the Seller aggregate;
(iii) Prolias has not entered into any agreement, contract, lease, or license outside the Ordinary Course or, in any event, any agreement, contract, lease, or license with a value in excess of Business$10,000 individually or $25,000 in the aggregate;
(civ) The Seller no party (including Prolias) has not accelerated, terminated, made material modifications to, or canceled cancelled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Prolias is a party or by which it is bound other than in accordance with their respective terms or in (including but not limited to the Ordinary Course of BusinessCornell License Agreements and the JS Genetics JV Agreement);
(dv) The Seller Prolias has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in Permitted Exceptions;
(vi) Prolias has not made or committed to make any capital expenditures outside the Ordinary Course or in any event in excess of Business$10,000 individually or $25,000 in the aggregate;
(evii) The Seller Prolias has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Businessinvestment in, or any loan to, any other Person;
(fviii) The Seller Prolias has not transferredcreated, assignedincurred, assumed, or granted any license guaranteed or sublicense of any rights under otherwise become liable or responsible with respect to any Intellectual Property included more than $10,000 in the Assetsaggregate indebtedness for borrowed money and capitalized lease obligations;
(gix) The Seller there has not experienced any material damage, destruction, been no change made or loss (whether or not covered by insurance) to authorized in the AssetsOrganic Documents of Prolias;
(hx) The Seller Prolias has not made any loan to, or entered into any other transaction with, the Prolias Shareholders or any of its directors, managers, officers, contractors, consultants Affiliates or employees outside the Ordinary Course of Businessemployees;
(ixi) The Seller Prolias has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any such existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxii) The Seller Prolias has not granted any increase in excess of two percent (2%) in the base compensation of any of its directors, officers, and employees outside the Transferring EmployeesOrdinary Course or, in any event, any increase in excess of $25,000 individually or $50,000 in the aggregate;
(kxiii) The Seller Prolias not has awarded or paid any bonuses to employees of Prolias;
(xiv) Prolias has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, retention, termination, change in control or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any action to adopt any Prolias Benefit Plan);
(xv) Prolias has not made any other material change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Businessits managers, directors, officers, and employees;
(lxvi) The Seller Prolias has not conducted its cash management customs and practices instituted or settled any Legal Proceeding;
(including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilitiesxvii) and maintained its books and records other than there has been no material change in the Ordinary Course accounting or Tax reporting principles, methods or policies of Business Prolias and Prolias has not made a request to any Taxing Authority to change its Tax reporting principles;
(xviii) Prolias has not made, changed, rescinded or revoked any Tax election, settled or compromised any Tax claim or liability or entered into a settlement or compromise in relation to any Tax claim or liability;
(xix) Prolias has not prepared or filed any Tax Return (or any amendment thereof) except a Tax Return prepared in a manner consistent with past custom practice and practice;
(m) The Seller in respect of which Prolias has not changed any accounting policy or tax elections or practicescomplied with Applicable Law; and
(nxx) The Seller Prolias has not committed to any of the foregoing.
Appears in 1 contract
Sources: Collaboration Agreement (Pdi Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Company Most Recent Fiscal Year End, there has not been any Company Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(a) The Seller neither the Company nor its Subsidiaries has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and neither the Transaction Documents, the Seller Company nor its Subsidiaries has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller no party (including the Company or any of its Subsidiaries) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company or any of its Subsidiaries is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(d) The Seller neither the Company nor its Subsidiaries has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller neither the Company nor its Subsidiaries has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller neither the Company nor its Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(g) Except in the ordinary course of business and/or as disclosed in the Company Disclosure Schedule the Company and its Subsidiaries have not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(h) neither the Company nor its Subsidiaries has transferred, assigned, or granted any license license, sublicense, agreement, covenant not to s▇▇, or sublicense of any rights under or permission with respect to any material Intellectual Property included in the AssetsProperty;
(gi) The Seller there has not been no change made or authorized in the charter, operating agreement or bylaws of the Company or any of its Subsidiaries;
(j) neither the Company nor its Subsidiaries has issued, sold, or otherwise disposed of any of its equity, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its equity;
(k) neither the Company nor its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its equity (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity;
(l) neither the Company nor its Subsidiaries has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hm) The Seller neither the Company nor its Subsidiaries has not made any loan to, or entered into any other transaction with, any of its members, directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(in) The Seller neither the Company nor its Subsidiaries has not entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms agreement, or consistent with past practicebecome bound by any collective bargaining relationship;
(jo) The Seller neither the Company nor its Subsidiaries has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its members, directors, officers, and employees outside the Ordinary Course of Business;
(lp) The Seller neither the Company nor its Subsidiaries has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(q) neither the Company nor its Subsidiaries has made any other material change in employment terms for any of its members, but not limited todirectors, the timing of collection of receivables officers, and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mr) The Seller neither the Company nor its Subsidiaries has not changed implemented any accounting policy employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or tax elections any similar state, local, or practicesnon-U.S. law, regulation, or ordinance (collectively the “WARN Act”);
(s) neither the Company nor its Subsidiaries has made any loans or advances of money; and
(nt) The Seller neither the Company nor its Subsidiaries has not committed to any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Bio-Matrix Scientific Group, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as reflected in the Most Recent Financial Statements, 2018since the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial change in the business, financial condition, operations or results of operations of the Target taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Target has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Target) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Target is a party or by which it the Target is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller the Target has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller the Target has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller the Target has not transferred, assignedmade any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) the Target has not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(viii) the Target has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has been no change made or authorized in the charter or bylaws of the Target;
(x) the Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller the Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller the Target has not entered into any employment contract or outside the Ordinary Course of Business, nor has the Target entered into any collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
(j) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business;
(lxv) The Seller the Target has not conducted granted any increase in the base compensation of any of its cash management customs directors, officers, and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxvi) The Seller the Target has not changed adopted, amended, modified, or terminated any accounting policy bonus, profit-sharing, incentive, severance, or tax elections other plan, contract, or practicescommitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan); and
(nxvii) The Seller the Target has not made any other material change in employment terms for any of its directors, officers, and employees outside the Ordinary Course of Business; and (xviii) the Target has not committed to any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Aris Corp/)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth in §3(g) of the Disclosure Schedule, 2018since the Most Recent Fiscal Year End, there has not been any Material Adverse ChangeChange with respect to the Business or the Acquired Assets. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date, with respect to the Business and the Acquired Assets:
(ai) The Seller has not sold, leased, transferred, or assigned any assets used in the Businessasset or group of assets, tangible or intangible, outside other than for fair consideration in the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license (or series of agreements, contracts, leases or licenses which in the aggregate are) outside the Ordinary Course of Business;
(ciii) The Seller no Person (including Seller) has not accelerated, terminated, made material modifications to, or canceled cancelled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller has not imposed any Lien other than Permitted Liens upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller has not made any capital investment in, or any loan to, any other Person outside the Ordinary Course of Business;
(vii) Seller has not created, incurred, assumed, or guaranteed more than US$50,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) Seller has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hx) The Seller has not (a) made any loan toto any of the directors, officers, and employees of Seller or any of its Affiliates other than loans made in connection with payroll advances, initiation of employment or as permitted by employee benefit plans, or (b) entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of BusinessBusiness with any of the directors, officers, and employees of Seller or any of its Affiliates;
(ixi) The Seller has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of (i) any such existing such contract or agreement other than in accordance with their respective terms or consistent with past practice(ii) any employment policy;
(jxii) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The directors, officers, and employees of Seller has not made any other change in material employment terms for or any of the Transferring Employees its Affiliates outside the Ordinary Course of Business;
(lxiii) The Seller has not conducted its cash management customs adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any employees of Seller involved with the Business, or taken any such action with respect to any other Employee Benefit Plan;
(xiv) Seller has not made any other material change in employment terms, including without limitation compensation and practices (including, but not limited to, benefits for any of the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees involved with the Business outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxv) The Seller has not changed its normal business practices or taken any accounting policy other action outside the Ordinary Course of Business;
(xvi) Seller has not made any loans or tax elections or practicesadvances of money; and
(nxvii) The Seller has not agreed, consented to or committed to do any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Napro Biotherapeutics Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, or results of operations of the Company. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Company has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business, except for the sale of the FOGA Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Company has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business except with respect to the sale of the FOGA Business;
(ciii) The Seller no party (including the Company) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company is a party or by which it is bound other than in accordance with their respective terms or except in the Ordinary Course of Business and except in connection with the sale of the FOGA Business and the termination of the Manufacturer's Representative Business;
(div) The Seller the Company has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller the Company has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller the Company has not transferred, assignedmade any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) the Company has not created, incurred, assumed, or guaranteed more than $100,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) the Company has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has been no change made or authorized in the charter or bylaws of any of the Company.
(x) the Company has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock except for distributions to Sellers which do not reduce the Net Working Capital of the ▇.▇. ▇▇▇▇▇ Division of the Company on the Closing Date to the less than the Minimum Required Working Capital;
(xii) the Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller the Company has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller the Company has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller the Company has not conducted adopted, amended, modified, or terminated in any material respect any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (including, but not limited to, the timing of collection of receivables and payment of payables and or taken any such action with respect to any other current liabilitiesEmployee Benefit Plan) and maintained its books and records other than except for changes in commitments in the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxvii) The Seller the Company has not changed made any accounting policy or tax elections or practicesother material change in employment terms for any of its directors, officers, and employees outside the Ordinary Course of Business; and
(nxviii) The Seller the Company has not committed to any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn Engineering & Manufacturing Corp)
Events Subsequent to Most Recent Fiscal Year End. Since Except for the CDG Wind-Up, the Target Restructuring, the Centrefund Management Arrangements, the entering into this Agreement, the Transactions contemplated hereby, and any matters disclosed in Section 3.14 of the Target Disclosure Schedule, since December 31, 2018, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date2000:
(a) The Seller no Target Company has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside the its Ordinary Course of Business, other than transactions that have not had and would not reasonably be expected to have a Material Adverse Effect on the Target;
(b) Except for this Agreement and the Transaction Documents, the Seller no Target Company has not entered into any agreement, contract, lease, lease or license outside the its Ordinary Course of Business, other than transactions that have not had and would not reasonably be expected to have a Material Adverse Effect on the Target;
(c) The Seller no Person has not accelerated, terminated, made material modifications to, or canceled cancelled any agreement, contract, leaselease or license of any Target Company, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in transactions that have not had and would not reasonably be expected to have a Material Adverse Effect on the Ordinary Course of BusinessTarget;
(d) The Seller no Target Company has not imposed any Lien upon any of the Assetsmade, tangible or intangible, other than in the outside its Ordinary Course of Business, any capital investment in, any loan to (excluding interest accrued on Target Existing Debt) or any acquisition of the securities or assets of, any other Person, other than transactions that have not had and would not reasonably be expected to have a Material Adverse Effect on the Target;
(e) The Seller has not made any material capital expenditures in respect except as set forth on Section 3.14(e) of the Business outside Target Schedule, no Target Company has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation or otherwise, other than the Ordinary Course of BusinessTarget Existing Debt;
(f) The Seller except for the Intercompany Debt set forth on Section 3.14(f) of the Target Disclosure Schedule, no Target Company has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;
(h) The Seller has not made any loan to, or entered into any other material transaction with, with any of its direct or indirect shareholders, directors, managers, officers, contractors, consultants and employees;
(g) no Target Company has made or employees pledged to make any charitable or other contribution outside the its Ordinary Course of Business;
(h) no Target Company has issued, sold, or otherwise disposed of any of its capital stock or securities convertible into or exchangeable for such stock, or granted any options, warrants, or other rights to purchase or obtain any of such capital stock or securities;
(i) The Seller no Target Company has not entered into committed to do any employment contract or collective bargaining agreement, written or oral, or modified of the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;foregoing; and
(j) The Seller there has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made been any other change occurrence, change, event, incident, action, failure to act, or transaction which would reasonably be expected to result in material employment terms for any of a Material Adverse Effect on the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practices; and
(n) The Seller has not committed to any of the foregoingTarget.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse ChangeChange in the business, financial condition, operations, results of operations, or future prospects of Chameleon. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller Chameleon has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Chameleon has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including Chameleon) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Chameleon is a party or by which it is bound bound;
(iv) Chameleon has not imposed any Security Interest upon any of its assets, tangible or intangible;
(v) Chameleon has not made any material capital expenditures outside the Ordinary Course of Business;
(vi) Chameleon has not made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Chameleon has not created, incurred, assumed, or guaranteed more than $25,000 in accordance aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) Chameleon has not granted any license or sublicense of any material rights under or with their respective terms or respect to any Intellectual Property, except licenses in the Ordinary Course of Business;
(dix) The Seller there has been no change made or authorized in the charter or bylaws of Chameleon;
(x) Chameleon has not imposed any Lien upon issued, sold, or otherwise disposed of any of the Assetsits capital stock, tangible or intangiblegranted any options, warrants, or other than rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock except for issuances to service providers in the Ordinary Course of Business;
(exi) The Seller Chameleon has not declared, set aside, or paid any dividend or made any material distribution with respect to its capital expenditures stock (whether in respect cash or in kind) or redeemed, purchased, or otherwise acquired any of the Business outside the Ordinary Course its capital stock, except pursuant to Chameleon repurchase rights arising upon termination of Businessan individual's status as an employee, director or consultant;
(fxii) The Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller Chameleon has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller Chameleon has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractorsand employees, consultants or employees outside except in the Ordinary Course of Business;
(ixiv) The Seller Chameleon has not entered into any employment contract (other than offer letters and option agreements with service providers in the Ordinary Course of Business) or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than agreement, except in accordance with their respective terms or consistent with past practice;
(j) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business;
(lxv) The Seller Chameleon has not conducted granted any increase in the base compensation of any of its cash management customs directors, officers, and practices (includingemployees, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than except in the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxvi) The Seller Chameleon has not changed adopted, amended, modified, or terminated any accounting policy bonus, profit sharing, incentive, severance, or tax elections other plan, contract, or practices; andcommitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan), except as required by applicable law;
(nxvii) The Seller Chameleon has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $1,000.00 or outside the Ordinary Course of Business;
(ciii) The Seller no party (including Target) has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) involving more than $1,000.00 to which the Seller Target is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller Target has not imposed any Lien Liens upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller Target has not made any material capital expenditures in respect expenditure (or series of the Business related capital expenditures) either involving more than $1,000.00 or outside the Ordinary Course of Business;
(fvi) The Seller Target 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 $1,000.00 or outside the Ordinary Course of Business;
(vii) Target has not issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or a capitalized lease obligation;
(viii) Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) Target has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $1,000.00 or outside the Ordinary Course of Business;
(x) Target has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller there has been no change made or authorized in the articles of organization and operating agreement of Target;
(xii) Target has not issued, sold, or otherwise disposed of any of its membership interest, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its membership interest;
(xiii) Target has not declared, set aside, or paid any dividend or made any distribution with respect to its membership interest (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its membership interest;
(xiv) Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxv) The Seller Target has not made any loan to, or entered into any other transaction with, any of its directorsmembers, managers, directors, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixvi) The Seller Target has not entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms agreement, or consistent with past practicebecome bound by any collective bargaining relationship;
(jxvii) The Seller Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its managers, directors, officers, and employees outside the Ordinary Course of Business;
(lxviii) The Seller Target has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs managers, directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xix) Target has not made any other change in employment terms for any of its directors, but officers, and employees outside the Ordinary Course of Business;
(xx) Target has not limited toimplemented any employee layoffs that could implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar state, local, or non-U.S. law, regulation, or ordinance (collectively the timing “WARN Act”);
(xxi) Target has not made or pledged to make any charitable or other capital contribution outside the Ordinary Course of collection of receivables and payment of payables and other current liabilitiesBusiness;
(xxii) and maintained its books and records other than in there has not been any occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom and practiceinvolving Target;
(mxxiii) The Seller Target has not changed discharged a material Liability or Lien outside the Ordinary Course of Business;
(xxiv) Target has not made any accounting policy loans or tax elections or practicesadvances of money;
(xxv) Target has not disclosed any Confidential Information; and
(nxxvi) The Seller Target has not committed to any of the foregoing.
Appears in 1 contract
Sources: Business Sale and Membership Interest Purchase Agreement (Penford Corp)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, condition (financial or otherwise), operations, results of operations, or future prospects of the Company. Without limiting the generality of the foregoing, since that date and except as set forth on SCHEDULE 3.1(I) of the Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that dateSchedule:
(ai) The Seller the Company has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Company has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Company) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Company is a party or by which it the Company is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller has not imposed any Lien no Security Interest upon any of the Assetsassets, tangible or intangible, other than in intangible of the Ordinary Course of BusinessCompany have been created or incurred;
(ev) The Seller the Company has not made any material capital expenditures in respect an amount in excess of $50,000, either individually or in the Business outside the Ordinary Course of Businessaggregate;
(fvi) The Seller the Company has not transferred, assignedmade any capital investment in, or any loan to, any other Person;
(vii) the Company has not created, incurred, assumed, or guaranteed more than $50,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) the Company has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsCompany Proprietary Rights;
(gix) The Seller there has been no change made or authorized in the charter or bylaws of the Company;
(x) the Company has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller the Company has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractorsand employees, consultants or employees outside other than employment arrangements entered into in the Ordinary Course of BusinessBusiness and disclosed in writing to Buyer;
(ixiv) The Seller the Company has not granted any increase in the base compensation of or made any other material change in the employment terms of any of its directors, officers and employees;
(xv) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxvi) The Seller the Company has not granted adopted, amended, modified, or terminated any increase in excess of two percent (2%) in bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the base compensation benefit of any of the Transferring Employeesits directors, officers, and employees;
(kxvii) The Seller has not made any other change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller Company has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course usual and ordinary course of Business consistent business in accordance with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practices; and
(nxviii) The Seller the Company has not committed to do any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Scriptgen Pharmaceuticals Inc)
Events Subsequent to Most Recent Fiscal Year End. Since Except as set forth on Schedule 4(j), since December 31, 20182017, the Business has been conducted in the Ordinary Course of Business and there has not been any occurrence, change, development or event that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse ChangeEffect. Without limiting the generality of the foregoing, since that date, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:4(j):
(ai) The Seller Target has not abandoned or let lapse, sold, leased, transferred, or assigned any assets used assets, leases, licenses, agreements or Intangible Assets, in the Business, tangible any case that are material to Target or intangible, outside the Ordinary Course of Business;its business.
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;Business (except for this Agreement and the Restructuring).
(ciii) The Seller Target has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in Material Contract outside the Ordinary Course of Business;.
(div) The Seller Target has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not or made any material capital expenditures in respect excess of the Business outside the Ordinary Course of Business;$50,000.
(fv) The Seller Except in connection with the Restructuring, Target has not transferredissued, assignedsold, or otherwise disposed of any of its equity interests, or granted any license options, warrants, equity-based awards or sublicense other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of any rights under or with respect to any Intellectual Property included in the Assets;its equity interests.
(gvi) The Seller Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;affecting its properties, assets or business.
(hvii) The Seller Target has not advanced any money or other property or made any loan to, or entered into any other transaction with, any of its current or former directors, managers, officers, contractorsemployees, consultants or employees outside and Affiliates, other than cash advances for expenses reimbursable under Target’s reimbursement policies in the Ordinary Course of Business;Business (and not to exceed $15,000 in the aggregate).
(iviii) The Seller Target has not entered into any employment contract or similar Contract or any collective bargaining agreement, written or oral, or modified the terms of any existing such contract Contract or agreement other than in accordance with their respective terms or consistent with past practice;agreement.
(jix) The Seller Target has not granted (or promised to grant) any increase in excess of two percent (2%) in the base compensation or fringe benefits of any of the Transferring Employees;
(k) The Seller has not made its current or former directors, officers, and employees, or adopted, amended, modified, or terminated any Employee Benefit Plan, other change than as require by Law or any regularly scheduled increases in material employment terms for any of the Transferring Employees outside compensation or benefits granted in the Ordinary Course of Business;.
(lx) The Seller Target has not conducted its cash management customs and made any change in accounting methods or practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than or any change in the Ordinary Course of Business consistent with past custom and practice;depreciation or amortization policies or rates.
(mxi) The Seller Target has not changed any accounting policy agreed or tax elections or practices; and
(n) The Seller has not committed to any of the foregoing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthstream Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as otherwise provided in this Agreement or disclosed in Schedule 3.7 attached hereto, 2018since the 1999 Financial Statement Date, the Company's business has been conducted in the ordinary course consistent with past practices and there has not been any Material Adverse Changematerial adverse change in the business, financial condition or operations of the Company. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in since the Ordinary Course of Business, since that date1999 Financial Statement Date:
(a) 3.7.1 The Seller Company has not sold, leased, transferred, or assigned any assets used in the Business, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the AssetsCompany's assets, tangible or intangible, other than for fair consideration in the Ordinary Course ordinary course of Businessthe Company's business;
(e) 3.7.2 The Seller Company has not entered into any material agreement, contract, lease or license outside the ordinary course of the Company's business;
3.7.3 The Company has not made any material capital expenditures in respect expenditure outside the ordinary course of the Business Company's business;
3.7.4 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 obligations outside the Ordinary Course ordinary course of Businessthe Company's business;
(f) 3.7.5 The Seller Company has not transferreddelayed or postponed the payment of accounts payable and other liabilities outside the ordinary course of the Company's business;
3.7.6 The Company has not canceled, assignedcompromised, waived, or released any right or claim outside the ordinary course of the Company's business;
3.7.7 The Company has not granted any license or sublicense of any rights under or with respect to any Intellectual Property included rights, as defined herein;
3.7.8 There has been no change made or authorized in the Assetsarticles of incorporation or bylaws of the Company;
(g) 3.7.9 The Seller Company has not experienced declared or set aside any material damage, destruction, or loss unpaid dividends (whether in cash or not covered by insurance) to the Assetsin stock);
(h) 3.7.10 The Seller Company has not made any loan to, or entered into any other transaction with, any of its the Company's directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course ordinary course of Businessthe Company's business;
(i) 3.7.11 The Seller has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
(j) The Seller Company has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring EmployeesCompany's directors, officers, or employees outside the ordinary course of the Company's business;
(k) 3.7.12 The Seller 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 the Company's directors, officers, or employees;
3.7.13 The Company has not made any other material change in material the employment terms for of any of the Transferring Employees Company's directors, officers, or employees outside the Ordinary Course ordinary course of Businessthe Company's business;
(l) 3.7.14 The Seller Company has not conducted its cash management customs and practices suffered or incurred any damage, destruction or loss (includingwhether or not covered by insurance) which would have a Material Adverse Effect;
3.7.15 The Company has not entered into or amended, but or agreed to enter into or amend, any other contract or other agreement or other transaction material to the operations, prospects or financial condition of the Company outside of the ordinary course of the Company's business;
3.7.16 The Company has not limited toterminated, or agreed to terminate, or failed to renew any contract or other agreement that has or could reasonably be expected to have a Material Adverse Effect outside of the timing ordinary course of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than the Company's business;
3.7.17 There has been no change in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesmethods used by the Company; and
(n) The Seller 3.7.18 There has not committed been no agreement, whether oral or written, by the Company to do any of the foregoing.
Appears in 1 contract
Sources: Agreement of Sale and Purchase of Stock (Triumph Group Inc /)
Events Subsequent to Most Recent Fiscal Year End. Since December 31Except as set forth on §3(ee) of the Disclosure Schedule, 2018since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller has not sold, leased, transferred, or assigned any assets used in the Business, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $5,000 or which is outside the Ordinary Course of Business;
(cii) The Seller no party (including Target) has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) to which the Seller Target is a party or by which it Target is bound bound;
(iii) Target has not made any capital expenditure (or series of related capital expenditures) either (A) involving more than $5,000 or (B) outside the Ordinary Course of Business;
(iv) Target has not engaged in any efforts outside the Ordinary Course of Business to accelerate the collection of any accounts receivable, other than efforts in accordance with their respective terms past custom and practice to collect accounts receivable that are past due;
(v) Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(vi) Target has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) except in the Ordinary Course of Business;
(dvii) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller Target has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included except in the AssetsOrdinary Course of Business;
(gviii) The Seller Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hix) The Seller Target is not a party to any employment contract that has not made any loan tobeen disclosed to Buyer, or entered into any other transaction withcollective bargaining agreement, written or oral;
(x) Target has not granted any increase in the base compensation of any of its directors, current managers, officers, contractors, consultants or officers and employees outside the Ordinary Course of Business;
(ixi) The Seller Target does not have any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its managers, officers and employees that has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practicebeen disclosed to Buyer;
(jxii) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller Target has not made any other change in material employment terms for any of the Transferring Employees its managers, officers and employees outside the Ordinary Course of Business;
(lxiii) The Seller Target has not conducted its cash management customs and practices made any loans or advances of money;
(including, but xiv) Target has not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than engaged in any transaction outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesBusiness; and
(nxv) The Seller Target has not committed to any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Professional Diversity Network, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most ------------------------------------------------ Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of Cortext. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or (but not including those transactions reflected in the Ordinary Course of BusinessMost Recent Financial Statements, this Agreement, the Assignment Agreement, the Software License Agreement and the Employment Agreements), since that date:
(a) The Seller Cortext has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller Cortext has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Businesslicense;
(c) The Seller no party (including Cortext) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Cortext is a party or by which it Cortext is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(d) The Seller Cortext has not imposed any Lien security interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller Cortext has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Businessexpenditures;
(f) The Seller Cortext has not transferred, assignedmade any material capital investment in, or any material loan to, any Person;
(g) Cortext not created, incurred, assumed, or guaranteed any indebtedness;
(h) Cortext has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gi) The Seller there has been no change made or authorized in the Memorandum of Association or Articles of Association of Cortext;
(j) Cortext has not issued, sold, or otherwise disposed of any of its share capital, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its share capital;
(k) Cortext has not declared, set aside, or paid any dividend or made any distribution with respect to its share capital (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its share capital;
(l) Cortext has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hm) The Seller Cortext has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Businessand employees;
(in) The Seller Cortext has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practicethe Cortext Principals' Employment Agreements;
(jo) The Seller Cortext has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employeesits directors, officers, and employees;
(kp) The Seller Cortext has not made adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other change in material employment terms plan, contract, or commitment for the benefit of any of the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller has not conducted its cash management customs directors, officers, and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesemployees; and
(nq) The Seller Cortext has not committed to any of the foregoing.
Appears in 1 contract
Sources: Share Purchase Agreement (Virtual Communities Inc/De/)
Events Subsequent to Most Recent Fiscal Year End. Since December 31the Most Recent Fiscal Year End, 2018except as set forth on Schedule 7.7 or 7.8 or with respect to the proposed transfer of the Excluded Assets contemplated by Section 3.2, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of Enviroq and its Subsidiaries taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business7.8, since that date:
(a) The Seller none of Enviroq or any of its Subsidiaries has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller none of Enviroq or any of its Subsidiaries has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller no party (including any of Enviroq and its Subsidiaries) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller any of Enviroq or any of its Subsidiaries is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(d) The Seller none of Enviroq or any of its Subsidiaries has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller none of Enviroq or any of its Subsidiaries has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller none of Enviroq or any of its Subsidiaries has not transferred, assignedmade any material capital investment in, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assets;
(g) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assets;
(h) The Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees Person outside the Ordinary Course of Business;
(ig) The Seller has Enviroq and its Subsidiaries have not entered into any employment contract or collective bargaining agreementcreated, written or oralincurred, assumed, or modified the terms of any existing such contract or agreement other guaranteed more than $20,000 in accordance with their respective terms or consistent with past practiceaggregate indebtedness for borrowed money and capitalized lease obligations;
(jh) The Seller none of Enviroq or any of its Subsidiaries has not granted any increase in excess license or sublicense of two percent any material rights under or with respect to any Intellectual Property;
(2%i) there has been no change made or authorized in the base compensation charter or bylaws of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for Enviroq or any of the Transferring Employees outside the Ordinary Course its Subsidiaries; (j) none of Business;
(l) The Seller has not conducted its cash management customs and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy Enviroq or tax elections or practices; and
(n) The Seller has not committed to any of the foregoing.its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any occurrence, event, incident, action, failure to act, or transaction that constitutes the Basis of a Material Adverse ChangeEffect on Target or any that is outside of the Ordinary Course of Business. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(aA) The Seller Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
(B) Target has not entered into any agreements, contracts, leases, or licenses either involving more than $10,000 in the aggregate, having a term greater than 12 months or outside the Ordinary Course of Business;
(bC) Except for this Agreement and no party (including Target) has accelerated, terminated, modified, or cancelled any agreements, contracts, leases, or licenses involving more than $10,000 in the Transaction Documents, the Seller aggregate to which Target is a party or by which it is bound;
(D) Target has not entered into imposed or allowed to be imposed any agreementSecurity Interest (other than Permitted Liens) upon any of its assets, contract, lease, tangible or license intangible;
(E) Target has not made any capital expenditures involving more than $10,000 in the aggregate or outside the Ordinary Course of Business;
(cF) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller Target has not made any material capital expenditures in respect investment in, any loan to, or any acquisition of the Business securities or assets of, any other Person;
(G) Target 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 involving more than $10,000 in the aggregate;
(H) Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(fI) The Seller Target has not transferredcancelled, assignedcompromised, waived, or released any right or claim either involving more than $10,000 in the aggregate and outside the Ordinary Course of Business;
(J) Target has not granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gK) The Seller there has not experienced any material damage, destruction, been no change made or loss (whether authorized in the charter or not covered by insurance) to the Assetsbylaws of Target;
(hL) The Seller Except in connection with the Robe▇▇▇▇▇ ▇▇▇nsfer, Target has not issued, sold, or otherwise disposed of any of its capital stock or securities convertible into or exchangeable for such stock, or granted any options, warrants, or other rights to purchase or obtain any of such capital stock or securities;
(M) Except in connection with the distribution of the Summit Avenue Property to Galtelli, Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock or other securities;
(O) Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants and employees or employees outside their "Associates" (as defined in Rule 12b-2 under the Ordinary Course of BusinessExchange Act);
(iP) The Seller Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jQ) The Seller Target has not granted any increase in excess of two percent (2%) in the base any compensation of any of the Transferring Employeesits directors, officers, or other employees;
(kR) The Seller Target 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 Employee Benefit Plan);
(S) Target has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, or employees outside the Ordinary Course of Business;
(lT) The Seller Target has not conducted made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(U) Target has not increased, or experienced any change in assumptions underlying or method of calculating, any bad debt, contingency, tax or other reserves or changed its cash management customs and practices accounting practices, methods or assumptions (including, but including changes in estimates or valuation methods); or written down the value of any assets;
(V) Target has not limited to, the timing granted any bonuses or made any other payments of collection of receivables and payment of payables and other current liabilities) and maintained its books and records any kind (other than base compensation in the Ordinary Course of Business consistent with past custom and practice;
(mBusiness) The Seller has not changed to any accounting policy officer, director or tax elections employee of Target, or practicesto any Person related to any of the foregoing Persons; and
(nW) The Seller Target has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018, there the Most Recent Balance Sheet Date (x) the Company has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or conducted its business in all material respects in the Ordinary Course of Business, and (y) there has not been any event, change, condition, state of facts or development, that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect. In addition, and without limiting for the foregoing, expect as expressly permitted or expressly required by the terms of this Agreement, since that datethe Most Recent Balance Sheet Date:
(a) The Seller the Company has not sold, leased, transferred or assigned any material portion of its tangible assets (other than the sale of inventory and property, plant and equipment in the Ordinary Course of Business);
(b) the Company has not sold, leased, transferred, assigned, licensed or assigned otherwise transferred any assets used rights under any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets, in each case owned by the BusinessCompany except, tangible or intangiblein each case, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside in the Ordinary Course of Business;
(c) The Seller the Company has not acceleratedentered into, terminated, made material modifications tomaterially modified or amended, or canceled terminated any agreementMaterial Contract, contractother than, leasein each case, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller no party (including the Company) has provided written notice of its election to accelerate, terminate, modify in a manner adverse to the Company or cancel any Material Contract;
(e) the Company has not imposed experienced any Lien upon material damage or destruction to any material portion of its assets taken as a whole;
(f) the AssetsCompany has not granted any material bonus (including any transaction bonus or retention bonus), tangible compensation or intangiblesalary increase to any former or current employee (except for increases in base compensation in the prior to the date hereof not exceeding 5 percent individually or in the aggregate), or made, granted any increase in or established any employee benefit, severance, insurance, deferred compensation, pension, retirement or profit sharing plan or materially amended or terminated any existing Employee Benefit Plan (other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(f) The Seller has not transferred, assigned), or granted adopted any license or sublicense of any rights under or with respect to any Intellectual Property included in the Assetsnew Employee Benefit Plan;
(g) The Seller the Company has not experienced paid, loaned or advanced any material damage, destructionamount to, or loss (whether sold, transferred or not covered by insurance) to the Assets;
(h) The Seller has not made leased any loan of its material assets to, or entered into any other transaction agreement or arrangement with, any Affiliate of its directorsthe Company (other than payments, managersloans, officersadvances, contractorssales, consultants transfers, leases, agreements or employees outside arrangements between the Company and Seller);
(h) the Company has not made or committed to make any capital expenditure (or series of related capital expenditures) involving more than $100,000 individually, or $250,000 in the aggregate (other than capital expenditures in connection with the purchase of computers and related equipment in the Ordinary Course of Business, capitalized software or other budgeted capital expenditures disclosed to the Buyer prior to the date of this Agreement);
(i) The Seller the Company has not entered into incurred, assumed or guaranteed any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement Indebtedness (other than in accordance with their respective terms Intercompany Obligations and any guaranty of Indebtedness that will be terminated at or consistent with past practiceprior to the Closing);
(j) The Seller there has not granted any increase in excess of two percent (2%) been no change in the base compensation of any Governing Documents of the Transferring EmployeesCompany;
(k) The Seller the Company has not declared, set aside or made any other change distribution with respect to its membership interests (whether in material employment terms for cash or in kind), or redeemed, purchased or otherwise acquired any of the Transferring Employees outside the Ordinary Course of Businessits membership interests;
(l) The Seller the Company has not conducted its cash management customs and settled or compromised any material Tax liability, nor has it made any new (or changed any existing) material Tax election, nor made any material change in accounting or material Tax principles, practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;or policies; and
(m) The Seller the Company has not acquired, by merging or consolidating with, by purchasing equity securities or a material portion of the assets of, or by any other manner, any business or other Person or division of any Person;
(n) the Company has not changed any of its material accounting policy principles, policies, practices or tax elections methods from those in effect at the Most Recent Balance Sheet Date, except as may be required by GAAP;
(o) the Company has not settled or practicescompromised any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy, including those relating to Taxes; and
(np) The Seller the Company has not committed to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Target. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $5,000 or outside the Ordinary Course of Business;
(ciii) The neither the Target nor, to the Knowledge of the Seller or the officers and directors of the Target, any other party has not accelerated, terminated, made material modifications tomodified, or canceled cancelled any agreement, contract, lease, or license (or Permit relating to the Business series of related agreements, contracts, leases, and licenses) involving more than $5,000 to which the Seller Target is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller the Target has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller except as set forth in Section 4(h)(v) of the Disclosure Schedule, the Target has not made any material capital expenditures in respect expenditure (or series of the Business related capital expenditures) either involving more than $5,000 or outside the Ordinary Course of Business;
(fvi) The Seller the Target has not transferredmade any capital investment in, assignedany loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions) outside the Ordinary Course of Business;
(vii) the Target 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;
(viii) the Target has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) the Target has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $5,000 or outside the Ordinary Course of Business;
(x) the Target has not granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller there has been no change made or authorized in the charter or bylaws of the Target;
(xii) the Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xiii) the Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xiv) the Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxv) The Seller the Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants directors or employees officers outside the Ordinary Course of Business;
(ixvi) The Seller the Target has not entered into any employment contract or collective bargaining agreement, written or oral, or materially modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxvii) The Seller the Target has not granted any material increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors or officers outside the Ordinary Course of Business;
(lxviii) The Seller the Target has not conducted adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors or officers (or taken any such action with respect to any other Employee Benefit Plan);
(xix) the Target has not made any other change in employment terms for any of its directors and practices officers outside the Ordinary Course of Business;
(includingxx) the Target has not made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(xxi) to the Knowledge of Seller or the officers and directors of the Target, but there has not limited tobeen any other material occurrence, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in event, incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesinvolving the Target; and
(nxxii) The Seller the Target has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Targets taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller no Target has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller no Target has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including any Target) has not accelerated, terminated, made material modifications to, or canceled cancelled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller any Target is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller no Target has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller no Target has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller no Target has not transferred, assignedmade any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) no Target has created, incurred, assumed, or guaranteed more than $10,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) no Target has granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has not been no change made or authorized in the charter or bylaws of any Target;
(x) no Target has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) no Target has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) no Target has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller no Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller no Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller no Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxvi) The Seller no Target has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xvii) no Target has made any other material change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxviii) The Seller no Target has paid any amount to any third party with respect to any liability or obligation (including any costs and expenses the Sellers have incurred or may incur in connection with this Agreement and the transactions contemplated hereby) which would not changed any accounting policy or tax elections or practicesconstitute an Assumed Liability if in existence as of the Closing; and
(nxix) The Seller no Target has not committed to any of the foregoing.
Appears in 1 contract
Sources: Purchase Agreement
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the ---------------------------------------------------- Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(aA) The Seller none of Buyer and its Subsidiaries has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bB) Except for this Agreement none of Buyer and the Transaction Documents, the Seller its Subsidiaries has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(cC) The Seller no party (including any of Buyer and its Subsidiaries) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller any of Buyer and its Subsidiaries is a party or by which it any of them is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(dD) The Seller none of Buyer and its Subsidiaries has not imposed any Lien upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(eE) The Seller none of Buyer and its Subsidiaries has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fF) The Seller none of Buyer and its Subsidiaries has not made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(G) Neither Buyer nor any of its Subsidiaries has created, incurred, assumed, or guaranteed more than $100,000.00 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(H) none of Buyer and its Subsidiaries has transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gI) The Seller there has not been no change made or authorized in the charter or bylaws of any of Buyer and its Subsidiaries, except as set forth in Section (viii)(I) of Schedule II;
(J) none of Buyer and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(K) none of Buyer and its Subsidiaries has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hL) The Seller none of Buyer and its Subsidiaries has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(iM) The Seller none of Buyer and its Subsidiaries has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jN) The Seller none of Buyer and its Subsidiaries has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lO) The Seller none of Buyer and its Subsidiaries has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(P) none of Buyer and its Subsidiaries has made any other material change in employment terms for any of its directors, but not limited toofficers, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in employees outside the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mQ) The Seller none of Buyer and its Subsidiaries has not changed made any accounting policy loans or tax elections or practicesadvances of money; and
(nR) The Seller none of Buyer and its Subsidiaries has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018, there has not been any Material Adverse Change. Without limiting the generality Except as otherwise disclosed in §3(h) of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of BusinessSchedule, since that datethe Most Recent Fiscal Year End:
(ai) The Seller has Sellers have not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller has Sellers have not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including Sellers) has not accelerated, terminated, made material modifications to, or canceled cancelled any material agreement, contract, lease, or license or Permit relating to the Business and to which the any Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller has Sellers have not imposed or suffered any Lien, which Lien results in a Material Adverse Change upon any of the Assetstheir assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller has Sellers have not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller has Sellers have not made any capital investment in, or any loan to, any other Person outside the Ordinary Course of Business;
(vii) Sellers have not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gviii) The Seller has Sellers have not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the their Business or Acquired Assets;
(hix) The No Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Business;
(i) The Seller has not entered into terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jx) The No Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxi) The No Seller has not conducted adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (including, but not limited to, the timing of collection of receivables and payment of payables and or taken any such action with respect to any other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesEmployee Benefit Plan); and
(nxii) The Seller has Sellers have not committed to any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Greenbrier Companies Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End and except as disclosed in the Disclosure Schedule, there has not been occurred any Material Adverse ChangeEffect. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller Target has not sold, leased, transferred, or assigned any assets used in the Businessof its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
(ii) Target has not entered into any agreements, contracts, leases, or licenses either involving more than $10,000 in the aggregate, having a term greater than 12 months or outside the Ordinary Course of Business;
(biii) Except for this Agreement and no party (including any of Target) has accelerated, terminated, modified, or cancelled any agreements, contracts, leases, or licenses involving more than $10,000 in the Transaction Documents, the Seller aggregate to which Target is a party or by which it is bound;
(iv) Target has not entered into imposed or allowed to be imposed any agreementSecurity Interest upon any of its assets, contract, lease, tangible or license intangible;
(v) Target has not made any capital expenditures involving more than $10,000 in the aggregate or outside the Ordinary Course of Business;
(cvi) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller Target has not made any material capital expenditures in respect investment in, any loan to, or any acquisition of the Business securities or assets of, any other Person;
(vii) Target 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 involving more than $10,000 in the aggregate;
(viii) Target has not delayed or postponed the payment of accounts payable and other Liabilities (other than as set forth in Schedule B hereto) outside the Ordinary Course of Business;
(fix) The Seller Target has not transferredcancelled, assignedcompromised, waived, or released any right or claim either involving more than $10,000 in the aggregate or outside the Ordinary Course of Business;
(x) Target has not granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gxi) The Seller there has been no change made or authorized in the charter or bylaws of any of Target;
(xii) Target has not issued, sold, or otherwise disposed of any of its capital stock or securities convertible into or exchangeable for such stock, or granted any options, warrants, or other rights to purchase or obtain any of such capital stock or securities;
(xiii) Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock or other securities;
(xiv) Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to its property involving more than $10,000 in the Assetsaggregate;
(hxv) The Seller Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants and employees or employees outside their "Associates" (as defined in Rule 12b-2 under the Ordinary Course of BusinessExchange Act);
(ixvi) The Seller Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxvii) The Seller Target has not granted any increase in excess of two percent (2%) in the base any compensation of any of the Transferring Employeesits directors, officers, or other employees;
(kxviii) The Seller Target 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, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xix) Target has not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
(lxx) The Seller Target has not conducted its cash management customs and practices made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(includingxxi) there has not been any other material occurrence, but not limited toevent, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesinvolving Target; and
(nxxii) The Seller Target has not increased, or experienced any change in assumptions underlying or method of calculating, any bad debt, contingency, tax or other reserves or changed its accounting practices, methods or assumptions (including changes in estimates or valuation methods); or written down the value of any assets; and
(xxiii) Target has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changeadverse change in the Business or the business, financial condition, operations, results of operations, or future prospects of the Seller. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
: (ai) The the Seller has not sold, leased, transferred, pledged or assigned any assets used in the Businessof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
; (bii) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement(or issued), contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications tomodified, or canceled any agreement, contract, lease, note, bond, debt security or license either involving more than $5,000 or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
; (fiii) The the Seller has not transferredmade any capital expenditure (or series of related capital expenditures) either involving more than $5,000 or outside the Ordinary Course of Business; (iv) the Seller has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business; (v) the Seller has not canceled, assignedcompromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $5,000 or outside the Ordinary Course of Business; (vi) the Seller has not issued, sold, disposed of or granted any license rights to purchase any of its equity, or sublicense of declared, set aside, or paid any rights under dividend or made any distribution with respect to its equity (whether in cash or in kind), or redeemed, purchased, or otherwise acquired any Intellectual Property included in of its equity; (vii) the Assets;
(g) The Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to its property; (viii) the Assets;
(h) The Seller has not made any loan to, or entered into any other transaction with, any of its directors, managerspartners, officers, contractors, consultants or employees outside the Ordinary Course of Business;
; (iix) The the Seller has not (a) entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
agreement; (jb) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
its partners, officers, or employees (k) The Seller has not or made any other change in material employment terms for any of the Transferring Employees such persons) outside the Ordinary Course of Business;
; or (lc) The Seller adopted, amended, modified, or terminated any Employee Benefit Plan; (x) there has not conducted its cash management customs and practices (includingbeen any other occurrence, but not limited toevent, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in incident, action, failure to act, or transaction outside the Ordinary Course of Business consistent with past custom involving the Seller; and practice;
(mxi) The Seller has not changed any accounting policy or tax elections or practices; and
(n) The the Seller has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 20182002, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that datedate through the date hereof:
(ai) The Seller the Company has not sold, leased, transferred, or assigned any assets used in the Businessassets, tangible or intangible, other than the sale of inventory in the Ordinary Course of Business;
(ii) the Company has not entered into any Contract outside the Ordinary Course of Business;
(biii) Except for this Agreement and no party (including the Transaction DocumentsCompany) has outside of the Ordinary Course of Business accelerated, cancelled or terminated, nor have there been any amendments or modifications to, any material Contract, lease or license to which the Seller Company is a party or by which it is bound;
(iv) the Company has not entered into imposed any agreementLien upon any of its assets, contract, leasetangible or intangible;
(v) the Company has not made, or license failed to make, any capital expenditures outside the Ordinary Course of Business;
(cvi) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller Company has not made any material capital expenditures investment in respect of the Business outside the Ordinary Course of Businessany other Person;
(fvii) The Seller the Company has not created, incurred, assumed or guaranteed more than $100,000 in aggregate Indebtedness except as set forth on the face of the Most Recent Balance Sheet;
(viii) the Company has not transferred, assigned, assigned or granted any license or sublicense of any rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has been no change made or authorized in the charter or bylaws of the Company;
(x) the Company has not issued, sold or otherwise disposed of any of its capital stock, or granted any options, warrants or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Company has not experienced any material damage, destruction, destruction or loss (whether or not covered by insurance) to the Assetsany of its properties or assets in excess of $25,000 for any single loss or $100,000 for all such losses;
(hxiii) The Seller the Company has not made any loan to, or entered into any other transaction with, with any of its directors, managers, officers, contractors, consultants or officers and employees outside the Ordinary Course of Business;
(ixiv) The Seller the Company has not entered into any employment contract Contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceContract;
(jxv) The Seller the Company has not granted any increase in excess of two percent (2%) in increased the base compensation or benefits of any of the Transferring Employees;
(k) The Seller has not made any other change its directors, officers and employees, except for changes in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business, which, for this purpose shall not include any increase in annual salary or similar rate of pay greater than two and one-half percent (2 1/2%) per year or material increases in benefits not applicable to eligible employees generally;
(lxvi) The Seller the Company has not conducted entered into, adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance, or other plan, Contract, or commitment for the benefit of any of its cash management customs directors, officers and practices employees (includingor taken any such action with respect to any other Employee Benefit Plan);
(xvii) the Company has not made any material change in any method of accounting or accounting principles or practice, but except for any such change required by reason of a change in GAAP;
(xviii) the Company has not limited tochanged its Tax accounting or Tax reporting principles, methods or policies;
(xix) the timing of collection of receivables and payment of payables and other current liabilitiesCompany has not made or revoked any election relating to Taxes, settled or compromised any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes;
(xx) and maintained its books and records the Company has not instituted or settled any Legal Proceedings;
(xxi) the Company has not loaned or advanced any money to any Person (other than advances to employees related to travel and expenses made in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesBusiness); and
(nxxii) The Seller the Company has not committed or otherwise agreed to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the Assets, financial condition, operations, results of operations, or the Industrial Container Business of the Acquired Companies. Since the Most Recent Fiscal Year End, except as set forth in Schedule 4.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since that date, except as set forth on Disclosure in Schedule 4.9 4.6 or as otherwise provided in the Ordinary Course of Business, since that date:
this Agreement: (a) The Seller has the Acquired Companies have not sold, leased, transferred, or assigned any assets used in the Business, tangible or intangible, outside the Ordinary Course of Business;
(b) Except for this Agreement and the Transaction Documents, the Seller has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(c) The Seller has not accelerated, terminated, made material modifications to, or canceled any agreement, contract, lease, license or Permit relating to the Business and to which the Seller is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Business;
(d) The Seller has not imposed any Lien upon any of the Assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business;
; (eb) The Seller has the Acquired Companies have not made entered into any material capital expenditures in respect of the Business Applicable Contract outside the Ordinary Course of Business;
; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work -in-process) at levels consistent with their past practices in the Ordinary Course of Business, (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) The Seller has the Acquired Companies have not transferredcanceled, assignedcompromised, waived, or granted released any license right or sublicense claim (or series of any related rights under or with respect to any Intellectual Property included in and claims) outside the Assets;
Ordinary Course of Business; (g) The Seller has the Acquired Companies have not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the their Assets;
; (h) The Seller has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or employees outside the Ordinary Course of Business;
(i) The Seller has Acquired Companies have not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practice;
outside the Ordinary Course of Business; (ji) The Seller has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employees;
(k) The Seller has Acquired Companies have not made any other change in material employment terms for any of the Transferring Employees its directors, officers, and employees outside the Ordinary Course of Business;
; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets to Seller or any affiliate of Seller except for payments for services rendered or products delivered in the Ordinary Course of Business and except for distributions of cash made in the Ordinary Course of Business; (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) The Seller has the Acquired Companies have not conducted its cash management customs and practices prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, but without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable pursuant to Section 9.2(b) or accelerating deductions to periods for which Seller is liable pursuant to Section 9.2(a), (m) the Acquired Companies have not limited topaid, the timing of collection of receivables and agreed to pay or incurred any Liability for any payment of payables and other current liabilities) and maintained its books and records for any contribution to any Plan other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed or paid any accounting policy bonus to any employees other than in the Ordinary Course of Business or tax elections granted any increase in compensation to any employee other than in the Ordinary Course of Business or practices; and
(n) The Seller has not committed to made any increase or enhancement of benefits in any of the foregoingPlans other than in the Ordinary Course of Business and (s) there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of the Acquired Companies.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the business, financial condition, operations, results of operations, or future prospects of the Target taken as a whole. Without limiting the generality of the foregoing, except as set forth on Disclosure Schedule 4.9 or in the Ordinary Course of Business, since that date:
(ai) The Seller the Target has not sold, leased, transferred, or assigned any assets used in the Businessassets, tangible or intangible, outside the Ordinary Course of Business;
(bii) Except for this Agreement and the Transaction Documents, the Seller Target has not entered into any agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no party (including the Target) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller Target is a party or by which it is bound other than in accordance with their respective terms or in the Ordinary Course of Businessbound;
(div) The Seller the Target has not imposed any Lien Security Interest upon any of the Assetsits assets, tangible or intangible, other than in the Ordinary Course of Business;
(ev) The Seller the Target has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Business;
(fvi) The Seller the Target has not transferred, assignedmade any capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) the Target has not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(viii) the Target has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has been no change made or authorized in the constitution of the Target;
(x) the Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Target has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller the Target has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractors, consultants or and employees outside the Ordinary Course of Business;
(ixiv) The Seller the Target has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller the Target has not granted any increase in excess of two percent (2%) in the base compensation of any of the Transferring Employeesits directors, officers, and employees;
(kxvi) The Seller the Target 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, and employees;
(xvii) the Target has not made any other material change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business;
(l) The Seller has not conducted its cash management customs directors, officers, and practices (including, but not limited to, the timing of collection of receivables and payment of payables and other current liabilities) and maintained its books and records other than in the Ordinary Course of Business consistent with past custom and practice;
(m) The Seller has not changed any accounting policy or tax elections or practicesemployees; and
(nxviii) The Seller the Target has not committed to any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Commonwealth Biotechnologies Inc)
Events Subsequent to Most Recent Fiscal Year End. Since December 31, 2018the Most Recent Fiscal Year End, there has not been any Material Adverse ChangeChange and the business and operations of the Target and its Subsidiaries have been conducted in the Ordinary Course of Business. Without limiting the generality of the foregoing, except as set forth disclosed on Section 4(h) of the Disclosure Schedule 4.9 or in the Ordinary Course of BusinessSchedule, since that datethe Most Recent Fiscal Year End:
(ai) The Seller none of Target and its Subsidiaries has not sold, leased, transferred, or assigned any assets used in the Businessmaterial assets, tangible or intangible, outside other than the sale of inventory in the Ordinary Course of Business;
(bii) Except for this Agreement none of Target and the Transaction Documents, the Seller its Subsidiaries has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(ciii) The Seller no Person (including any of Target and its Subsidiaries) has not accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license or Permit relating to the Business and to which the Seller any of Target and its Subsidiaries is a party or by which it any of them is bound bound;
(iv) none of Target and its Subsidiaries has imposed any Lien (other than Permitted Encumbrances) upon any of its assets, tangible or intangible;
(v) none of Target and its Subsidiaries has made any material capital expenditures other than in accordance with their respective terms the Target's or in the Ordinary Course of Businessa Subsidiary's budget;
(dvi) The Seller none of Target and its Subsidiaries has not imposed any Lien upon any of the Assets, tangible or intangible, other than in the Ordinary Course of Business;
(e) The Seller has not made any material capital expenditures in respect of the Business outside the Ordinary Course of Businessinvestment in, or any material loan to, any other Person;
(fvii) The Seller Target and its Subsidiaries have not created, incurred, assumed, or guaranteed more than $250,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) none of Target and its Subsidiaries has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property included in the AssetsProperty;
(gix) The Seller there has not been no change made or authorized in the charter or bylaws of any of Target and its Subsidiaries;
(x) none of Target and its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) none of Target and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) none of Target and its Subsidiaries has experienced any material damage, destruction, or loss (whether or not covered by insurance) to the Assetsits property;
(hxiii) The Seller none of Target and its Subsidiaries has not made any loan to, or entered into any other transaction with, any of its directors, managers, officers, contractorsand employees or any Affiliate of any Seller, consultants or employees outside other than advances for expenses in the Ordinary Course of Business;
(ixiv) The Seller none of Target and its Subsidiaries has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any such existing such contract or agreement other than in accordance with their respective terms or consistent with past practiceagreement;
(jxv) The Seller none of Target and its Subsidiaries has not granted any increase in excess of two percent (2%) in the base compensation of any of its directors, officers, and employees, other than increases in the Transferring Employees;
(k) The Seller has not compensation of employees made any other change in material employment terms for any of the Transferring Employees outside the Ordinary Course of Business;
(lxvi) The Seller none of Target and its Subsidiaries has not conducted adopted, amended, modified, terminated or increased any benefits under any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its cash management customs directors, officers, and practices employees (including, but not limited to, the timing of collection of receivables and payment of payables and or taken any such action with respect to any other current liabilitiesEmployee Benefit Plan) and maintained its books and records other than such changes for the benefit of its employees made in the Ordinary Course of Business consistent with past custom and practiceBusiness;
(mxvii) The Seller none of Target and its Subsidiaries has not made any other material change in employment terms for any of its directors, officers, and employees, other than such changes in the employment terms of employees made in the Ordinary Course of Business;
(xviii) none of Target and its Subsidiaries has made any loans or advances of money other than intercompany loans and advances to employees made in the Ordinary Course of Business;
(xix) none of Target and its Subsidiaries has settled any material action, investigation, proceeding, litigation, claim or suit;
(xx) none of Target and its Subsidiaries has made any change in its methods of accounting or accounting principles or practices (including with respect to reserves);
(xxi) none of Target and its Subsidiaries has made, changed or revoked any material Tax election, elected or changed any method of accounting policy for Tax purposes, changed its fiscal year, settled or tax elections compromised any action in respect of Taxes, entered into any contract or practicesagreement in respect of Taxes with any governmental authority, or amended any Tax Return that would result in any material increase in the liability for Taxes of Buyer, its Affiliates or Target and its Subsidiaries not indemnified by Sellers hereunder; and
(nxxii) The Seller none of Target and its Subsidiaries has not committed to any of o f the foregoing.
Appears in 1 contract