Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 3 contracts
Samples: Agreement (Odd Job Stores Inc), Agreement (Odd Job Stores Inc), Agreement (Odd Job Stores Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in the Company SEC Reports or in Section 2.6 3.8 of the Company Disclosure Schedule, or (iii) for the Transactionssince September 30, since the Balance Sheet Date1999, the Company and its subsidiaries have carried conducted their business in the ordinary course and there has not occurred: (i) any Material Adverse Effect; (ii) any amendments or changes in the articles of incorporation or By-laws of the Company; (iii) any damage to, or destruction or loss of, any asset of the Company or its subsidiaries (whether or not covered by insurance) that would have a Material Adverse Effect; (iv) any material change by the Company or its subsidiaries in their accounting methods, principles or practices; (v) any material revaluation by the Company or its subsidiaries of any of their assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (vi) any sale of a material amount of property of the Company or any of its subsidiaries, except in the ordinary course of business; (vii) any declaration, setting aside or payment of any dividend or distribution in respect of Shares or any redemption, purchase or other acquisition of any of the Company's securities (except as contemplated by this Agreement); (viii) any increase in the compensation or benefits or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, the granting of stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers of the Company or any subsidiary, in each case except in the ordinary course of business consistent with past practice or except as required by applicable law; (ix) any creation or assumption by the Company or any of its subsidiaries of any Lien on any material asset of the Company or any of its subsidiaries, other than in the ordinary course of business, consistent with past practice; (x) any making of any loan, advance or capital contribution to or investment in any person by the Company or any of its subsidiaries, other than advances to employees to cover travel and operated their respective businesses in all material respects other ordinary business-related expenses in the ordinary course of business consistent with past practice; (xi) any incurrence or assumption by the Company or any of its subsidiaries of any indebtedness for borrowed money or any guarantee, and there has not occurred any: endorsement or other incurrence or assumption of a material liability (awhether directly, contingently or otherwise) event by the Company or change any of its subsidiaries for the obligations of any other person (other than any wholly owned subsidiary of the Company), in each case other than in the ordinary course of business consistent with past practice; or (xii) any modification, amendment, assignment or termination of or relinquishment by the Company or any of its subsidiaries of any rights under any Material Contract that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Duff & Phelps Credit Rating Co), Agreement and Plan of Merger (Fsa Acquisition Corp), Agreement and Plan of Merger (Duff & Phelps Credit Rating Co)
Absence of Certain Changes or Events. Except Since January 1, 2006, until the date of this Agreement, (i) except as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datecontemplated by this Agreement, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects business in the ordinary course of business consistent with past practice, and (ii) there has not occurred any: been (a) any change, event or change that occurrence which has had or would reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, Effect or (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or (A) any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock stock, property or propertyotherwise in respect of the Company’s or its Subsidiaries’ capital stock; (B) with respect to any class redemption, repurchase or other acquisition of any shares of capital stock of the Company or any of its subsidiaries Subsidiaries (other than dividends by a direct in connection with the forfeiture or indirect wholly owned subsidiary exercise of the equity based awards, Options and Restricted Company to its parentCommon Stock in accordance with existing agreements or terms), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, ; (dC) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(hcontemplated by this Agreement (1) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or its Subsidiaries to any of its subsidiaries to any employee their directors, officers or employees of any material increase in compensationcompensation or benefits, except for normal increases in the ordinary course of business consistent with past practice, practice or that are required under any Company Plan; (i2) grant by the Company or any of its subsidiaries granting to any director, officer or employee of the right to receive any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required provided for under any employmentplan or agreement in effect prior to January 1, severance 2006 or termination agreements set forth on Section 2.6(i(3) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries Subsidiaries into any (employment, consulting, indemnification, termination, change of control or severance agreement or arrangement with any present or former director, officer or employee of the Company or its Subsidiaries, or any amendment to or adoption of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan or collective bargaining agreement; (D) any material change by the Company in its accounting principles, except as hereinafter definedmay be required to conform to changes in statutory or regulatory accounting rules or GAAP or regulatory requirements with respect thereto; (E) any material Tax election made by the Company or its Subsidiaries or any settlement or compromise of any material Tax liability by the Company or its Subsidiaries; or (lF) acceleration of vesting of any Optionmaterial change in Tax accounting principles by the Company or its Subsidiaries, except acceleration previously provided for in the Stock Planinsofar as may have been required by applicable Law.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Abbott Laboratories), Agreement and Plan of Merger (Kos Pharmaceuticals Inc), Agreement and Plan of Merger (Jaharis Mary)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet DateSheet, the Company and has conducted its subsidiaries have carried on and operated their respective businesses in all material respects business only in the ordinary course of business consistent with past practice, practice and there has not occurred anybeen: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company any Material Adverse EffectChange to the Company, (bii) sale any declaration, setting aside or payment of any dividend on, or other disposition distribution (whether in cash, stock or property) in respect of, any of the Company’s or pledge any of its Subsidiaries’ capital stock, or any purchase, redemption or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of acquisition by the Company or any of its subsidiariesSubsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except sales for repurchases from employees following their termination pursuant to the terms of inventory their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (cv) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition material change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects assets, including, without limitation, writing down the use value of capitalized inventory or value thereof writing off notes or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases accounts receivable other than in the ordinary course of business consistent with past practice, (ivii) grant any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in debts or waiver of any claims or rights of material value, (ix) any sale, transfer or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) other disposition outside of the Company Disclosure Scheduleordinary course of business of any properties or assets (real, copies of which have been made available to Purchaserpersonal or mixed, tangible or any grant intangible) by the Company or any of its subsidiaries Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any employee other than an officer of any increase action described in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry this section by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanSubsidiaries.
Appears in 3 contracts
Samples: Purchase Agreement (Nuance Communications, Inc.), Purchase Agreement (Warburg Pincus Private Equity Viii L P), Purchase Agreement (Nuance Communications, Inc.)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof of this Agreement (as amended to the date of this Agreement, the "Filed SEC Documents"), (ii) as set forth or in Section 2.6 4.01(h) of the Company Disclosure Schedule, Schedule or (iii) for as otherwise expressly contemplated by the TransactionsTransaction Agreements, since the Balance Sheet Datedate of the most recent audited financial statements included in the Filed SEC Documents, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects conducted the Retained Business only in the ordinary course of business consistent with past practice, and there has not occurred any: been (ai) event any event, change or change that development which individually or in the aggregate has had or would reasonably be expected to havehave a material adverse effect on the Retained Companies or on the GBC Companies or would impair the ability of the Retained Companies or the GBC Companies, individually as the case may be, to consummate the transactions contemplated by, or in to satisfy their obligations under, the aggregate, a Company Material Adverse EffectTransaction Agreements, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock, other than regular quarterly cash dividends, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fx) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee who will be a Retained Employee (as defined in the Distribution Agreement) of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (iy) grant any granting by the Company or any of its subsidiaries to any officer such employee of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practicepractice or as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, or (jz) any entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance consulting, severance, termination or termination indemnification agreement with any officersuch employee, (kv) establishmentany damage, adoptiondestruction or loss, amendment whether or modification ofnot covered by insurance, that has had or increase of benefits underwould reasonably be expected to have a material adverse effect on the Retained Companies or on the GBC Companies or (vi) except insofar as may have been disclosed in the Filed SEC Documents or required by a change in GAAP, any plan that would constitute a change in accounting methods, principles or practices by the Company Plan (as hereinafter defined) materially affecting the assets, liabilities or (l) acceleration businesses of vesting of any Option, except acceleration previously provided for in the Stock PlanRetained Companies.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Westinghouse Electric Corp), Agreement and Plan of Merger (Westinghouse Electric Corp), Agreement and Plan of Merger (Gaylord Entertainment Co)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company's or any of its subsidiaries' capital stock, (iv) except as set forth in Section Part 2.6 of the Company Disclosure ScheduleSchedules, or (iii) for the Transactions, since the Balance Sheet Date, any granting by the Company and or any of its subsidiaries have carried on and operated their respective businesses of any increase in all material respects compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariessubsidiaries of any bonus, except sales for bonuses made in the ordinary course of inventory business consistent with past practice, or (v) any granting by the Company or any of its subsidiaries of any increase in severance or termination pay or (vi) any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any other agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (vii) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9) other than licenses in the ordinary course of business consistent with past practice, (cviii) declaration, setting aside any amendment or payment of any dividend or other distribution (whether in cash, stock or property) consent with respect to any class of capital stock of the Company licensing agreement filed or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company required to its parent), or any repurchase, redemption or other acquisition be filed by the Company or any of its subsidiaries of any capital stock of with the CompanySEC, (dix) split, combination or reclassification of any capital stock of material change by the Company, (e) change Company in financial or tax its accounting methods, principles or practices practices, except as required by concurrent changes in GAAP, (x) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects assets, including, without limitation, writing down the use value of capitalized inventory or value thereof writing off notes or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases accounts receivable other than in the ordinary course of business and consistent with past practice, ; or (ixi) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except changes in the ordinary course vesting schedules of business consistent with past practice, (j) entry by the outstanding Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanOptions.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Va Linux Systems Inc), Agreement and Plan (Va Linux Systems Inc), Agreement and Plan of Reorganization (Andover Net Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the ------------------------------------ Company SEC Documents filed and publicly available not later than two days prior to the date hereof of this Agreement (the "Filed Company SEC Documents"), (ii) and except as set forth on Schedule 3.5 hereto or as it relates to the Viacom Transaction or as otherwise ------------ disclosed in Section 2.6 of writing by the Company Disclosure Schedule, or (iii) for to Evergreen prior to the Transactionsexecution and delivery of this Agreement, since the Balance Sheet Datedate of the most recent audited financial statements included in the Filed Company SEC Documents, the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects business only in the ordinary course of business consistent with past practicecourse, and there has not occurred any: been (ai) event or any change that has had or would which could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (including as a result of the consummation of the transactions contemplated by this Agreement), (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of the Company's outstanding capital stock (other than the payment of regular cash dividends on the Company Convertible Preferred Stock in accordance with usual record and payment dates), (iii) any split, combination or reclassification of any of its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (iv) (x) any granting by the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)any director, or any repurchase, redemption officer or other acquisition by employee or independent contractor of the Company or any of its subsidiaries of any capital stock increase in compensation or acceleration of benefits, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (y) any granting by the Company or any of its subsidiaries to any director, officer or other employee or independent contractor of any increases in, or acceleration of benefits in respect of, severance or termination pay, or pay in connection with any change of control of the Company, (d) splitexcept in the ordinary course of business consistent with prior practice or as was required under any employment, combination severance or reclassification of any capital stock termination agreements in effect as of the Companydate of the most recent audited financial statements included in the Filed Company SEC Documents or (z) any entry by the Company or any of its subsidiaries into any employment, severance, change of control, or termination or similar agreement with any such director, officer or other employee or independent contractor, or (ev) change any exchange in financial or tax accounting methods, principles or practices by the Company or any of its subsidiariessubsidiaries materially affecting its assets, liability or business, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plangenerally accepted accounting principles.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Evergreen Media Corp), Agreement and Plan of Merger (Ginsburg Scott K), Agreement and Plan of Merger (Ginsburg Scott K)
Absence of Certain Changes or Events. Except Between the date of the Company Balance Sheet and the date hereof, there has not been: (i) as disclosed in any event or occurrence which has had a Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth any declaration, setting aside or payment of any dividend on, or other distribution (whether in Section 2.6 cash, stock or property) in respect of, any of the Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company Disclosure Scheduleor its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees, directors or consultants following the termination of their services pursuant to the terms of pre-existing stock option or purchase agreements, (iii) for any split, combination or reclassification of any of the TransactionsCompany's or any of its subsidiaries' capital stock, since the Balance Sheet Date, (iv) any granting by the Company and or any of its subsidiaries have carried on and operated their respective businesses of any increase in all material respects compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariessubsidiaries of any bonus, except sales for bonuses made in the ordinary course of inventory business consistent with past practice, or any granting by the Company or any of its subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section Section 3.9((a))) other than non-exclusive licenses granted in the ordinary course of business consistent with past practice, (cvi) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition material change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP or SEC requirements, or (vii) any material revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects assets, including, without limitation, writing down the use value of capitalized inventory or value thereof writing off notes or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases accounts receivable other than in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cybermedia Inc), Agreement and Plan of Merger (Networks Associates Inc/), Agreement and Plan of Merger (Networks Associates Inc/)
Absence of Certain Changes or Events. Except as set forth in Schedule 2.9 hereto or in the Stub Financial Statements, since January 1, 2006, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company’s stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company’s capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationcompensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paybonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (jv) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any issuance of capital stock of the Company, (ix) any revaluation by the Company of any of its subsidiaries into assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any (or amendment sale of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofassets of the Company other than in the ordinary course of business, or increase (x) any agreement, whether written or oral, to do any of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Endeavor Acquisition Corp.), Agreement and Plan of Reorganization (Endeavor Acquisition Corp.)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth any declaration, setting aside or payment of any dividend on, or other distribution (whether in Section 2.6 cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any repurchase for value or redemption by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company Disclosure Scheduleor its Subsidiaries except for repurchases from Employees following termination of employment pursuant to the terms of applicable pre-existing stock option or purchase agreements, or (iii) for any split, combination or reclassification of any of the TransactionsCompany’s or any of its Subsidiaries’ capital stock, since the Balance Sheet Date, (iv) any granting by the Company and or any of its subsidiaries have carried on and operated their respective businesses Subsidiaries of any material (whether individually or in all material respects the aggregate) increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practicepractice (other than to directors or officers of the Company), and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariesSubsidiaries of any material (whether individually or in the aggregate) bonus, except sales for bonuses made in the ordinary course of inventory business consistent with past practice (other than to directors or officers of the Company), or any granting by the Company or any of its Subsidiaries of any material (whether individually or in the aggregate) increase in severance or termination pay or any entry by the Company or any of its Subsidiaries into any material (whether individually or in the aggregate) employment, severance, termination or indemnification agreement, (v) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 3.09(a)(i)), other than non-exclusive license, supply and distribution agreements entered into in the ordinary course of business consistent with past practice, (cvi) declaration, setting aside or payment of any dividend or other distribution material (whether individually or in cash, stock the aggregate) amendment or property) consent with respect to any class of capital stock Company Material Contract (as defined in Section 3.17) in effect since the date of the Company or Balance Sheet, (vii) any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition material change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP, or (viii) any material revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planassets.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Globalive Communications Corp.), Agreement and Plan of Merger (Yak Communications Inc)
Absence of Certain Changes or Events. Except Since December 31, 2005 there has not been, except where it would not have a Material Adverse Effect on the Parent Guarantor, the Company or any of their Subsidiaries and except as permitted and/or required by the Merger Agreement (ia) as disclosed any material liability incurred by the Parent Guarantor, the Company or any of their Subsidiaries, other than current liabilities incurred in the SEC Documents filed ordinary course of business consistent in type and publicly available not later than two days prior amount with past practices, (b) any material asset or property of the Parent Guarantor, the Company or any of their Subsidiaries made subject to any Encumbrance of any kind (except pursuant to the date hereof (the "Filed SEC Security Documents"), (iic) as set forth in Section 2.6 any cancellation of any debt owed to or claim held by the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet DateParent Guarantor, the Company and its subsidiaries have carried on and operated or any of their respective businesses in all Subsidiaries, (d) any payment of dividends on, or other distribution with respect to, or any direct or indirect redemption, purchase or acquisition of, any shares of the capital stock or other securities of the Parent Guarantor, the Company or any of their Subsidiaries., (f) any disposition of any tangible or intangible material respects asset of the Parent Guarantor, the Company or any of their Subsidiaries, (g) any loan by the Parent Guarantor, the Company or any of their Subsidiaries to any officer, director, employee, consultant, agent, Affiliate or stockholder of the Parent Guarantor, the Company or any of their Subsidiaries (other than advances to such persons in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or practices in the aggregate, a Company Material Adverse Effectconnection with bona fide business expenses), (bh) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material (whether or would result in a Company Material Adverse Effect)not covered by insurance) of any asset of the Parent Guarantor, (h) grant by the Company or any of its subsidiaries their Subsidiaries, (i) any extraordinary increase, direct or indirect, in the compensation paid or payable to any officer of any increase in compensationofficer, except as was required under any employment agreements set forth on Section 2.6(h) director, employee, consultant or agent of the Company Disclosure ScheduleParent Guarantor, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to their Subsidiaries, (j) any employee write-down of the value of any increase in compensationinventory, except for normal increases in or any write-off as uncollectible of any account or note receivable of the ordinary course of business consistent with past practiceParent Guarantor, (i) grant by the Company or any of its subsidiaries to any officer of any increase their Subsidiaries that is not consistent in (or acceleration of vesting or payment of) severance or termination paytype and amount with the Parent Guarantor’s, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, Company’s or any grant of their Subsidiaries’ past practices or for which adequate amounts had not been reserved, (k) any change in the accounting methods, practices or policies followed by the Parent Guarantor, the Company or any of its subsidiaries to their Subsidiaries or any employee other than an officer of any increase change in (depreciation or acceleration of vesting amortization policies or payment of) severance rates theretofore adopted, which has not been adequately provided for or termination pay, except disclosed in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanFinancial Statements.
Appears in 2 contracts
Samples: Loan Agreement (Israel Technology Acquisition Corp.), Loan Agreement (Israel Technology Acquisition Corp.)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 2.9 of the Company Disclosure Schedule, since the Interim Balance Sheet Date there has not been, occurred or arisen: (i) any event or condition of any character that has had or is reasonably expected to have Material Adverse Effect on the Company; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements; (iii) for any split, combination or reclassification of any of the Transactions, since the Balance Sheet Date, Company's or any of its subsidiaries' capital stock; (iv) any granting by the Company and or any of its subsidiaries have carried on and operated their respective businesses of any increase in all material respects compensation or fringe benefits or any payment by the Company or any of its subsidiaries of any bonus, or any granting by the Company or any of its subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby; (v) entry by the Company or any of its subsidiaries into (x) any licensing or other Contract relating to the use, acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than (1) end-user licenses of commercially available software applications for internal use by the Company in the ordinary course of business consistent with past practice, and there has not occurred any: (a2) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein commercial licenses of the Company or any of its subsidiaries, except sales of inventory Company's software in the ordinary course of business consistent with past practice, or (cy) declaration, setting aside any amendment or payment of any dividend or other distribution (whether in cash, stock or property) consent with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption material licensing or other Contract relating to the use, acquisition or disposition of any Intellectual Property; (vi) any change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP; (vii) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liabilityof its assets, (g) damageincluding, destruction without limitation, writing down the value of capitalized inventory or loss writing off notes or accounts receivable or any sale of any material asset assets of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than in the ordinary course of business consistent with past practice, ; (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (jviii) entry by the Company or any of its subsidiaries into any Contract filed or required to be filed by the Company with the SEC; (ix) any negotiation or amendment agreement by the Company or any of its subsidiaries to do any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for the things described in the Stock Planpreceding clauses (i) through (viii) (other than negotiations or agreements with Parent regarding the Transactions).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Avantgo Inc), Agreement and Plan of Merger (Avantgo Inc)
Absence of Certain Changes or Events. Except as set forth in Schedule 2.9 hereto, since June 30, 2006, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company’s stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company’s capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationcompensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paybonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (jv) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any issuance of capital stock of the Company, (ix) any revaluation by the Company of any of its subsidiaries into assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any (or amendment sale of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofassets of the Company other than in the ordinary course of business, or increase (x) any agreement, whether written or oral, to do any of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 2 contracts
Samples: Merger Agreement (Ithaka Acquisition Corp), Merger Agreement (Ithaka Acquisition Corp)
Absence of Certain Changes or Events. Except Since January 1, 2002, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of the capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Subsidiaries, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, except for (A) repurchases or the redemption of Company Exchangeable Preferred Stock and (B) repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase Contracts, (diii) any split, combination or reclassification of any of the capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect)Subsidiaries, (hiv) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h(A) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee Subsidiaries of any increase in compensationcompensation or fringe benefits, except for normal increases of cash compensation and option grants made in the ordinary course of business consistent with past practice or as required under existing Contracts, (B) any payment by the Company or any of its Subsidiaries of any bonus, except for bonuses made in the ordinary course of business consistent with past practice or as required under existing Contracts, or (C) any granting by the Company or any of its Subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any other currently effective Contract the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) any entry by the Company or any of its Subsidiaries into any licensing or other Contracts with regard to the acquisition or disposition of any Intellectual Property, other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing Contract filed or required to be filed by the Company with the SEC, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or applicable law, or (vii) any revaluation by the Company of any of its assets (including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable in an amount greater than Fifty Thousand Dollars ($50,000) in the aggregate) or any sale of assets of the Company other than in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Insilicon Corp), Agreement and Plan of Merger (Synopsys Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Since December 31, 2014, (iia) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects in the ordinary course of business consistent with past practice, and (b) there has not occurred any: been (aA) event any change in the financial condition, business or change results of their operations or any circumstance, occurrence or development of which the Company has Knowledge, that has had or would is reasonably be expected likely to have, individually or in the aggregate, have a Company Material Adverse Effect, (bB) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class shares of share capital stock of the Company or any of its subsidiaries Subsidiaries (except for dividends or other than dividends distributions by a direct any Subsidiary to the Company or indirect wholly owned subsidiary to any Subsidiary of the Company to its parentCompany), ; (C) any material change in any method of accounting or any repurchase, redemption or other acquisition accounting practice by the Company or any of its subsidiaries Subsidiaries; (D) any making or revocation of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the election, any settlement or compromise of any material Tax liability, or any change (gor request to any taxing authority to change) damage, destruction or loss of any material asset aspect of the method of accounting of the Company or any of its subsidiaries which materially affects Subsidiaries for Tax purposes; (E) any amendment to the use memorandum and articles of association (or value thereof or a material part other similar governing instrument) of any improvement Leased by the Company or any of its subsidiaries pursuant Subsidiaries; (F) any adoption of, resolution to the Real Property Lease and which damageapprove or petition or similar proceeding or order in relation to, destruction a plan of complete or loss is not covered by insurancepartial liquidation, subject to reasonable deductible limits (it being agreed that the existencedissolution, level and coverage scheme of insurancearrangement, if anymerger, shall be taken into account but shall not be determinative for purposes consolidation, restructuring, recapitalization or other reorganization of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries Subsidiaries; (G) any receiver, trustee, administrator or other similar Person appointed in relation to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) the affairs of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or its property or any granting by the Company part thereof; or (H) any agreement to do any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cnshangquan E-Commerce Co., Ltd.), Agreement and Plan of Merger (ChinaEquity USD Fund I L.P.)
Absence of Certain Changes or Events. Except (i) Since September 30, 1996, Xxxxx has conducted its business in the ordinary course and in a manner consistent with past practices and, since such date, except as disclosed in the Xxxxx SEC Documents filed Reports, Xxxxx has not: (a) suffered any event or occurrence that has had a Material Adverse Effect on Xxxxx; (b) suffered any damage, destruction or loss, whether covered by insurance or not, materially and publicly available not later than two days prior to the date hereof adversely affecting its properties or business; (the "Filed SEC Documents")c) declared, (ii) as set forth aside or paid any divided or made any other distribution on or in Section 2.6 respect of the Company Disclosure Scheduleshares of its capital stock or declared any direct or indirect redemption, retirement, purchase or other acquisition or such shares; (d) issued any shares of its capital stock or any warrants, rights, or (iii) options for, or entered into any commitment relating to such capital stock except for options and rights to purchase shares of Xxxxx Common Stock granted under the TransactionsXxxxx Option Plans and the Xxxxx Purchase Plan, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business and consistent with past practicepractices, and there has not occurred any: shares of Xxxxx Common Stock issued upon the exercise of stock options and rights; (ae) event or made any material change that has had or would reasonably be expected to have, individually or in the aggregateaccounting methods or practices it follows, a Company Material Adverse Effectwhether for general financial or tax purposes, or any change in depreciation or amortization policies or rates; (bf) sale sold, assigned, transferred, licensed or otherwise disposed of any material patent, trademark, trade name, brand name, copyright (or pending application for any patent, trademark or copyright), invention, work of authorship, process, know-how, formula or trade secret or interest thereunder or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, intangible asset except sales of inventory for transactions entered into in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, business; (g) damage, destruction or loss of entered into any material asset of the Company commitment or transaction (including without limitation any of its subsidiaries which materially affects the use borrowing or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (hcapital expenditure) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than in the ordinary course of business consistent with past practice, business; (ih) grant by the Company or incurred any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paymaterial liability, except in the ordinary course of business and consistent with past practice; (i) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with any of its officers, directors or shareholders or any affiliate of any of the foregoing, other than employee compensation and benefits and reimbursement of employment related business expenses incurred in the ordinary course of business; (j) entry by the Company agreed to take any action described in this Section 4.6 or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that which would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting breach of any Option, except acceleration previously provided for of the representations or warranties of Xxxxx contained in the Stock Plan.this Agreement; or 18
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Haber George T), Agreement and Plan of Reorganization (Cismas Sorin C)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 3.07 of the Company Disclosure Schedule, or (iii) for the Transactionssince December 31, since the Balance Sheet Date2007, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with their past practice, (ca) there has not been any Material Adverse Change, and (b) from such date until the date hereof there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)stockholders, or (ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, including pursuant to the Company’s share repurchase program, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or independent contractor, of the Company or any of its Subsidiaries (all such individuals, collectively, the “Company Personnel”) of any increase in compensation, bonus or fringe or other benefits, except in the ordinary course of business consistent with past practice or as was required under any Company Benefit Agreement or Company Benefit Plan, (B) any granting by the Company or any of its Subsidiaries to any Company Personnel of (1) any increase in severance or termination pay or (2) any right to receive any severance or termination pay, (C) any entry by the Company or any of its Subsidiaries into, or any amendments of, (1) any Company Benefit Agreement or (2) any Contract with any Company Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement, (D) the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date hereof, or (E) the adoption, amendment or termination of any Company Benefit Plan or entry into any agreement, plan or arrangement to do any of the foregoing, (v) any material damage, destruction or loss, whether or not covered by insurance, of any material asset of the Company or any of its Subsidiaries, (vi) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable LawGAAP, (fvii) any material Tax election inconsistent with past practices or the any settlement or compromise of any material income Tax liability, liability or (gviii) damage, destruction any sales of real estate or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaserrestaurants, or any granting by the Company or any of its subsidiaries Contract with respect to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plansuch sale.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Independent Brewers United, Inc.), Agreement and Plan of Merger (Pyramid Breweries Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), or (ii) as set forth in Section 2.6 6.6 of the Company Purchaser Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company Purchaser and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Purchaser Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 6.13 herein of the Company Purchaser or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company Purchaser or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company Purchaser to its parent), or any repurchase, redemption or other acquisition by the Company Purchaser or any of its subsidiaries of any capital stock of the CompanyPurchaser, (d) split, combination or reclassification of any capital stock of the CompanyPurchaser, (e) change in financial or tax Tax accounting methods, principles or practices by the Company Purchaser or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company Purchaser or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company Purchaser or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Purchaser Material Adverse Effect), (h) grant by the Company Purchaser or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h6.6(h) of the Company Purchaser Disclosure Schedule, copies of which have been made available to PurchaserSeller, or any granting by the Company Purchaser or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company Purchaser or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i6.6(i) of the Company Purchaser Disclosure Schedule, copies of which have been made available to PurchaserSeller, or any grant by the Company Purchaser or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company Purchaser or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Purchaser Plan (as hereinafter defined) or (l) acceleration of vesting of any Optionoption, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Odd Job Stores Inc), Asset Purchase Agreement (Odd Job Stores Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Since December 31, (ii) 1997, except as set forth in the SEC Reports (as defined in Section 2.6 3.06(a) hereof) or the Company Disclosure Statement, (a) neither the Company nor any Subsidiary has incurred any indebtedness for money borrowed except in the ordinary and usual conduct of the Company's business; (b) neither the Company nor any Subsidiary has assumed, guaranteed, endorsed or otherwise became responsible for the obligations of any other individual, firm or corporation, other than any obligation relating to existing co-insurance programs and the endorsement of checks for collection in the ordinary and usual course of business; (c) there has been no creation or assumption by the Company or any Subsidiary of any Lien on any asset; (d) there has been no loan, advance or capital contribution to or investment in any person by the Company or any Subsidiary except in the ordinary and usual conduct of the Company's business; (e) neither the Company nor any Subsidiary has entered into any contract, lease, commitment or transaction with any officer, director or any affiliate (as defined in Rule 405 of the SEC promulgated under the Securities Act) of the Company Disclosure Scheduleor any Subsidiary (other than pursuant to consulting or employment agreements or other employee benefit arrangements); (f) there has been no transaction or commitment made, or any contract or agreement entered into, by the Company or any Subsidiary relating to its assets or business (iiiincluding the acquisition or disposition of any assets) for or any relinquishment by the TransactionsCompany or any Subsidiary of any contract or other right, since the Balance Sheet Date, which in either case is material to the Company and its subsidiaries have carried on the Subsidiaries taken as a whole (other than transactions, commitments and operated their respective businesses relinquishments contemplated by this Agreement and other than sales of inventory in all material respects the ordinary and usual course of business and other than investments of a capital nature in the ordinary and usual course of business); (g) neither the Company nor any Subsidiary has purchased or leased any real property; (h) neither the Company nor any Subsidiary has leased any equipment or property other than in the ordinary and usual course of business; (i) there has been no change in any method of accounting or accounting practice by the Company or the Subsidiaries; (j) there has been no grant (whether or not in writing and whether formal or informal) of any severance or termination pay to any current or former officer or employee of the Company or any Subsidiary, any employment, bonus, profit sharing, pension, retirement, deferred compensation, fringe benefit, or other similar agreement with or plan or program for (or, except as required by law, any amendment, formal or informal, to any such existing agreement with or plan or program for) any current or former officer, director, employee or consultant of the Company or any Subsidiary, any increase in benefits payable under any existing severance or termination pay policies, employment agreements, or deferred compensation or fringe benefit plan or program or any increase in compensation, bonus or other benefits payable, or to become payable, to officers, directors, employees or consultants of the Company or any Subsidiary other than increases in benefits to non-officer employees of the Company in the ordinary course of business consistent in accordance with past practice, and practices; (k) there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any been no repurchase, redemption or other acquisition by the Company or any Subsidiary of its subsidiaries any outstanding shares of capital stock or other ownership interest of the Company or any Subsidiary; (l) there has been no declaration or payment of any dividend on, or other distribution with respect to, any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by Subsidiary; and (m) neither the Company or nor any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken Subsidiary has entered into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other transaction other than in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planbusiness.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Corcom Inc), Agreement and Plan of Merger (Communications Instruments Inc)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet, there has not been: (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior any Material Adverse Effect with respect to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries’ capital stock, or any repurchasepurchase, redemption or other acquisition by the Company of any of the Company’s capital stock or any other securities of the Company or its subsidiaries or any grant or issuance of any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or service providers following their termination of service pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its subsidiaries’ capital stock, (iv) other than in the ordinary course of business consistent with past practice, any granting by the Company or any of its subsidiaries of any capital stock increase in compensation or fringe benefits to any of the Companytheir officers or employees, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased payment by the Company or any of its subsidiaries pursuant of any bonus to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchasertheir officers or employees, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationseverance or termination pay or any entry by the Company or any of its subsidiaries into, except for normal increases or material modification or amendment of, any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby or any acceleration or release of any vesting condition to the right to exercise any option, warrant or other right to purchase or otherwise acquire any shares of the Company’s capital stock or any acceleration or release of any right to repurchase shares of the Company’s capital stock upon the termination of employment or services with the Company, (v) any material change or alteration in the policy of the Company relating to the granting of stock options or other equity compensation to its employees and consultants, (vi) any entry by the Company or any of its subsidiaries into, or material modification, amendment or cancellation of, any development services, licensing, distribution, sales, services or other similar agreement with respect to any material Company Intellectual Property Rights (as defined in Section 2.9) other than in the ordinary course of business consistent with past practicepractices, (ivii) grant any acquisition, sale or transfer of any material asset by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practicepractices, (jviii) entry any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (ix) any material revaluation by the Company of any of its subsidiaries into any (material assets, including writing off notes or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for accounts receivable other than in the Stock Planordinary course of business consistent with past practices.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Hemosense Inc), Agreement and Plan of Reorganization (Inverness Medical Innovations Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the Company SEC Documents filed and publicly available not later than two days prior or in Schedule 3.1(f) to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the TransactionsLetter, since December 31, 2006 (the Balance Sheet “Company Financial Statement Date”) and through the date of this Agreement, the Company and its subsidiaries the Company Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: been (a) event any change in the business, financial condition or change results of operations of the Company and the Company Subsidiaries taken as a whole, that has had resulted or would reasonably be expected to haveresult, individually or in the aggregate, in a Company Material Adverse Effect, nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to result in a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined except for regular distributions (in Section 2.14 herein the case of the Company or Company) not in excess of $0.0758333 per Share with customary record and payment dates, any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock, (dc) any split, combination or reclassification of any of the Company’s capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of its beneficial interest or any issuance of an ownership interest in, any Company Subsidiary except as contemplated by this Agreement, (d) any issuance of Company Options or restricted shares of the capital stock of the Company, (e) any damage, destruction or loss, whether or not covered by insurance, that has or would have a Company Material Adverse Effect, (f) any change in financial or tax accounting methods, principles or practices by the Company or any Company Subsidiary materially affecting its subsidiariesassets, liabilities or business, except insofar as may have been disclosed in the Company SEC Documents or required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices regulatory accounting principles or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss any amendment of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance consulting, severance, retention or termination agreements set forth on Section 2.6(i) any other agreement between the Company and any officer or director of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Inland American Real Estate Trust, Inc.), Agreement and Plan of Merger (Apple Hospitality Five Inc)
Absence of Certain Changes or Events. Except (i) as disclosed set forth in the Company SEC Documents Reports filed and publicly available not later than two days prior to the date hereof of this Agreement, and except as contemplated by this Agreement, since December 31, 2006, there has not been: (i) any Material Adverse Effect on the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company's capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationcompensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paybonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (jv) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of its subsidiaries into the Company, (vii) any issuance of capital stock of the Company, or (or amendment viii) any revaluation by the Company of any existing) employmentof their respective assets, severance including, without limitation, writing down the value of capitalized inventory or termination agreement with writing off notes or accounts receivable or any officer, (k) establishment, adoption, amendment or modification of, or increase sale of benefits under, any plan that would constitute a assets of the Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for other than in the Stock Planordinary course of business.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Suncrest Global Energy Corp), Securities Exchange Agreement (Henderson J Sherman Iii)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to contemplated by this Agreement, since December 31, 2020 through the date hereof (the "Filed SEC Documents")of this Agreement, (ii) except as set forth in Section 2.6 required to respond to Pandemic Measures, each of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and Group Companies has conducted its subsidiaries have carried on and operated their respective businesses in all material respects business in the ordinary course of business consistent with past practice, practice and there has not occurred anybeen: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a any Company Material Adverse Effect, ; (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchasepurchase, redemption or other acquisition by the Company of any of the shares of Company Common Stock, Company Preferred Stock or any of its subsidiaries of any capital stock other securities of the CompanyCompany or any options, warrants, calls or rights to acquire any such Company Common Stock, Company Preferred Stock or other securities, other than pursuant to the terms of a Company Option, other than the repurchase of unvested shares of Company Common Stock from former Company employees, consultants or other service providers; (dc) any split, combination or reclassification of any capital stock of the Company, shares of Company Common Stock or Company Preferred Stock; (ed) any material change by the Company in financial or tax its accounting methods, principles or practices by the Company or its subsidiariespractices, except insofar as may have been required by a change concurrent changes in GAAP or applicable Law, Applicable Legal Requirements; (e) any change in the auditors of the Company; (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(hSchedule 4.10(f) of the Company Disclosure ScheduleLetter, copies any issuance of which have been made available to Purchasershares of Company Common Stock or Company Preferred Stock, or other than in connection with the exercise of a Company Option; (g) any granting revaluation by the Company or of any of its subsidiaries assets, including any sale of assets of the Company other than with respect to any employee of any increase in compensation, except for normal increases sales in the ordinary course of business consistent with past practicebusiness; or (h) any action taken or agreed upon by any of the Group Companies that would be prohibited by Section 6.1 (other than clauses (a), (c), (d), (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice), (j) entry by and, to the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officerextent related to the foregoing clauses, (kn) establishment, adoption, amendment thereof) if such action were taken on or modification of, or increase after the date hereof without the consent of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CM Life Sciences III Inc.), Agreement and Plan of Merger (Revolution Medicines, Inc.)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Since December 31, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date2007, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects business in the ordinary course Ordinary Course of business consistent with past practicethe Company’s Business and, since such date and through the date hereof, there has not occurred anyoccurred: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a any Company Material Adverse Effect, ; (b) sale any amendments to or other disposition of or pledge or other encumbrance upon a material amount of property or other assets changes in the Company Charter, Company Bylaws or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, Subsidiaries Governance Documents; (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damagedamage to, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects Subsidiaries (whether or not covered by insurance); (d) any change by the use Company in its accounting methods, principles or practices with respect to the Company and its consolidated Subsidiaries other than those required by GAAP; (e) any revaluation by the Company of any of its assets or any assets of its consolidated Subsidiaries, including writing down the value thereof of inventory or writing off notes or accounts receivable other than in the Ordinary Course of the Company’s Business; (f) any sale of a material part amount of any improvement Leased by assets (tangible or intangible) of the Company or any of its subsidiaries pursuant Subsidiaries; (g) any recalls, field notifications, field corrections or safety alerts with respect to the Real Property Lease and which damage, destruction products manufactured by or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage on behalf of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries Subsidiaries; (h) any other action or event that would have required the consent of Parent pursuant to subsections (iv)(other than in the Ordinary Course of the Company’s Business), (vii)(A)(1), (xi) or (xiii) of Section 5.1(a) or the authorization of or making any officer commitment to do such action or event; and (i) any business practice to materially accelerate the timing or materially increase the amount of any increase sales or shipments of products outside of the Ordinary Course of the Company’s Business and in compensation, except such a manner so as was required under any employment agreements set forth on Section 2.6(h) to cause the products so sold or shipped to be unable to be resold to the end-user customer or otherwise recognized as revenue of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanGAAP.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Advanced Medical Optics Inc), Agreement and Plan of Merger (Abbott Laboratories)
Absence of Certain Changes or Events. Except (i) for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) or as set forth in Section 2.6 of the Company Disclosure Schedule, expressly permitted or (iii) for the Transactionscontemplated by this Agreement, since the Balance Sheet Datedate of the most recent financial statements included in the Filed Company SEC Documents, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company been any Material Adverse EffectChange, and from such date until the date hereof there has not been (bi) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Subsidiaries, other than dividends by any declaration setting aside or payment from a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)the Company in the ordinary course of business consistent with past practice, or (ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries (each a “Participant”) of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any Participant not previously receiving or entitled to receive such type of compensation or benefit, except (1) in the case of employees and consultants who are neither directors nor officers, for normal increases in cash compensation in the ordinary course of business consistent with past practice or (2) as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent financial statements included in the Filed Company SEC Documents, (B) any granting by the Company or any of its Subsidiaries to any Participant of any right to receive any increase in change of control, severance or termination pay, (C) any entry by the Company or any of its Subsidiaries into, or any amendment or termination of (1) any employment, deferred compensation, consulting, severance, change of control, termination, retention, indemnification, loan or similar agreement between the Company or any of its Subsidiaries, on the one hand, and any Participant, on the other hand, or (2) any agreement between the Company or any of its Subsidiaries, on the one hand, and any Participant, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Company Benefit Agreements”), (D) any payment of any benefit under, or the grant of any award under, or any amendment to, or termination of, any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of Company Stock Options, Company Restricted Shares, Company PSU Awards, Company Stock-Based Awards, “phantom” stock, stock appreciation rights, restricted stock, “phantom” stock rights, restricted stock units, deferred stock units, other equity or equity-based compensation, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable Legal Provisions or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent financial statements included in the Filed Company SEC Documents, (E) the taking of any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement or (F) the taking of any action to accelerate the vesting or payment of any compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, (v) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (vi) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable Law(vii) any material tax election or change in such election, (f) any change in material Tax election inconsistent with past practices method of accounting for tax purposes or the any settlement or compromise of any material Tax income tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mentor Corp /Mn/), Agreement and Plan of Merger (Johnson & Johnson)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (diii) any split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company 's or any of its subsidiaries which materially affects the use or value thereof or a material part of subsidiaries' capital stock, (iv) any improvement Leased granting by the Company or any of its subsidiaries pursuant to of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the Real Property Lease and which damageordinary course of business consistent with past practice, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant payment by the Company or any of its subsidiaries to any officer of any increase in compensationbonus, except as was required under any employment agreements set forth on Section 2.6(h) for bonuses made in the ordinary course of the Company Disclosure Schedule, copies of which have been made available to Purchaserbusiness consistent with past practice, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant severance or termination pay or any entry by the Company or any of its subsidiaries to into any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any currently effective employment, severance severance, termination or termination agreements set forth on Section 2.6(i) indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practicenature contemplated hereby, (jv) entry by the Company or any of its subsidiaries into any (licensing or amendment other agreement with regard to the acquisition or disposition of any existingmaterial Intellectual Property (as defined in Section 2.9) employmentother than licenses, severance distribution agreements, advertising agreements, sponsorship agreements or termination agreement merchant program agreements entered into in the ordinary course of business consistent with any officerpast practice (collectively, "ORDINARY COURSE AGREEMENTS"), (kvi) establishment, adoption, any amendment or modification ofconsent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, (vii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or increase of benefits under, (viii) any plan that would constitute a material revaluation by the Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Optionof its assets, except acceleration previously provided for including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the Stock Planordinary course of business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (At Home Corp), Agreement and Plan of Reorganization (Excite Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionsotherwise contemplated by this Agreement, since the Balance Sheet DateDecember 31, 2007, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects business in the ordinary course of business consistent with past practicecourse, and there has not occurred anyoccurred: (a) any event or change that has had or would reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, Effect on the Company or its Subsidiaries; (b) any material damage or destruction to, or loss of, any material assets or property owned, leased or used by the Company or its Subsidiaries (whether or not covered by insurance); (c) any sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, Subsidiaries except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, business; (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, any increase in compensation payable by the Company or its Subsidiaries to any director or executive officer of the Company or its Subsidiaries; (je) entry a settlement or agreement by the Company or its Subsidiaries to settle any action except in the ordinary course of business; (f) a declaration or payment of any dividend by the Company or its Subsidiaries on any shares of its capital stock (other than any dividend between or among the Company and its Subsidiaries); (g) except in the ordinary course of business, the entrance into any reinsurance or retrocessional agreement, either as a ceding company or reinsurer; (h) except in the ordinary course of business, any change in material underwriting, reinsurance, marketing, pricing or claim processing procedures or practices of the Company or any Subsidiaries; or (i) any agreement by the Company or any of its subsidiaries into the Subsidiaries to do any of the matters set forth in clauses (or amendment of any existinga) employment, severance or termination agreement with any officer, through (kh) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planabove.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National Atlantic Holdings Corp), Agreement and Plan of Merger (National Atlantic Holdings Corp)
Absence of Certain Changes or Events. Except (i) Since June 30, 2021, except as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company Unaudited Financial Statements, (iia) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: been any change or development in the business, operations, assets, liabilities, condition (a) event financial or change that otherwise), results of operations, cash flows or properties of Company or any of its Subsidiaries which has had had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Effect with respect to Company or Company Bank; (b) sale or other disposition except as otherwise expressly contemplated by this Agreement, Company and each of or pledge or other encumbrance upon a its Subsidiaries has conducted its business in all material amount respects in the Ordinary Course of property or other assets or Business; and (c) there has not been (i) any Real Property Lease as defined in Section 2.14 herein of the material change by Company or any of its subsidiariesSubsidiaries in its accounting methods, except sales of inventory in the ordinary course of business consistent with past practiceprinciples or practices, other than changes required by applicable Law or GAAP or regulatory accounting as concurred by Company’s independent accountants, (cii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to of any class of capital stock of the Company or any of its subsidiaries Subsidiaries or any redemption, purchase or other acquisition of any of its securities; (iii) (1) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, restricted stock awards, restricted stock unit awards or deferred stock unit awards), stock purchase or other than dividends by arrangement that would be a direct or indirect wholly owned subsidiary of the Company to its parent)Benefit Plan, or any repurchaseother increase in the compensation payable or to become payable to any directors, redemption officers or other acquisition by the employees of Company or any of its subsidiaries Subsidiaries (other than in the Ordinary Course of Business), or (2) any grant of change-in-control, retention, severance or termination pay, or any contract or arrangement entered into to make or grant any change-in-control, retention, severance or termination pay, (3) any payment of any capital stock of bonus, or (4) the Company, (d) split, combination or reclassification taking of any capital stock action not in the Ordinary Course of Business with respect to the Companycompensation or employment of directors, (e) change in financial officers or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise employees of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use Subsidiaries; (iv) any material election or value thereof or a material part of any improvement Leased changes in existing elections made by the Company or any of its subsidiaries pursuant to Subsidiaries for federal or state Tax purposes; (v) any material change in the Real Property Lease and which damage, destruction credit policies or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage procedures of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries Subsidiaries, the effect of which was or is to make any officer such policy or procedure less restrictive in any material respect; (vi) any material acquisition or disposition of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaserassets or properties, or any granting by contract for any such acquisition or disposition entered into other than investment securities of Company or Company Bank, or loans and loan commitments purchased, sold, made or entered into in the Ordinary Course of Business; (vii) any lease of real or personal property entered into, other than in connection with foreclosed property; or (viii) any issuance of capital stock or Rights to acquire capital stock of Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanSubsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eagle Bancorp Montana, Inc.), Agreement and Plan of Merger (Eagle Bancorp Montana, Inc.)
Absence of Certain Changes or Events. Except as set forth on ------------------------------------ Schedule 6.9, since December 31, 1994 (September 30, 1994 with respect to the Joint Venture Entities) there has not been: (i) as disclosed any material adverse change in the SEC Documents filed and publicly available not later than two days prior business, assets, prospects, condition (financial or other) or the results of operations of MITI, its United States subsidiaries or any of the Joint Venture Entities which are marked with a star on Schedule 6.1(a) (such Joint Venture Entities marked with a star are referred to the date hereof (collectively as the "Filed SEC DocumentsOperating Joint Venture Entities")) taken as a whole other than any such change caused by general economic conditions, political or governmental instability or uncertainty, civil disturbances or unrest, war or other similar acts of force majeure; (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, payment or setting aside or for payment of any dividend or any redemption, purchase or other acquisition of any shares of capital stock or securities of MITI; (iii) any return of any capital or other distribution of assets to stockholders of MITI; (iv) any material investments of a capital nature in excess of $10,000,000 in the aggregate by MITI, its United States subsidiaries and the Joint Venture Entities, either by the purchase of any property or assets or by any acquisition (by merger, consolidation or acquisition of stock or assets) of any corporation, partnership or other business organization or division thereof other than in accordance with the aggregate amount provided for in MITI's budget for the year ended December 31, 1995 (the "MITI Budget"); (v) any sale, disposition or other transfer of assets or properties of MITI, its United States subsidiaries or any Joint Venture Entity in excess of $100,000 individually or $1,000,000 in the aggregate other than investments (whether in cashthe form of debt or equity) in any subsidiary of MITI or any Joint Venture Entity in accordance with the aggregate amount provided for in the MITI Budget; (vi) any employment or consulting agreement entered into by MITI, stock its United States subsidiaries or property) any Joint Venture Entity with respect any officer or consultant of MITI, its United States subsidiaries or any Joint Venture Entity providing for annual salary or other annual payments in excess of $100,000 or any amendment or modification to, or termination of, any current employment or consulting agreement to any class of capital stock of the Company or which MITI, any of its United States subsidiaries or any Joint Venture Entity is a party which provides for annual salary or other annual payments in excess of $100,000; (vii) any agreement to take, whether in writing or otherwise, any action which, if taken prior to the date hereof, would have made any representation or warranty in this Article 6 untrue, incomplete or incorrect in any material respect; (viii) any change in accounting methods or practices or any change in depreciation or amortization policies or rates (other than dividends by a direct or indirect wholly owned subsidiary any such changes made in connection with the initial audits of the Company to Joint Venture Entities); or (ix) any failure by MITI, its parent), United States subsidiaries or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant Operating Joint Venture Entity to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases conduct their respective businesses only in the ordinary course of business consistent with past practice, practice (i) grant by other than any changes made in connection with the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) initial audits of the Company Disclosure Schedule, copies of which have been Joint Venture Entities or changes made available in an effort to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planconduct operations more effectively).
Appears in 2 contracts
Samples: Contribution Agreement (Actava Group Inc), Contribution Agreement (Orion Pictures Corp)
Absence of Certain Changes or Events. Except (i) as disclosed in ------------------------------------ the SEC Documents filed and publicly available not later than two days prior to the date hereof of this Agreement (the "Filed SEC Documents"), since December 31, 1998 there has ------------------- not been (i) any material adverse change in the business, financial condition or results of operations of Xxxxxxx and its Subsidiaries, taken as a whole, (ii) as set forth in Section 2.6 any destruction or loss of the Company Disclosure Schedule(whether or not covered by insurance) any property, asset or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change right that has had or would reasonably be expected is likely to have, individually or in the aggregate, have a Company Xxxxxxx Material Adverse Effect, (biii) sale any authorization or issuance by Xxxxxxx of any of its capital stock or the issuance of any debt security or other disposition evidence of or pledge or other encumbrance upon a material amount Indebtedness of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company Xxxxxxx or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practiceSubsidiaries, (civ) any redemption or other acquisition by Xxxxxxx of any of its capital stock or by Xxxxxxx or any of its Subsidiaries of any of their debt securities or other evidences of Indebtedness, or any payment made with respect to any of the foregoing (other than any regular, periodic payment of interest made with respect to a debt security or other evidence of Indebtedness), (v) any declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, capital stock or propertyotherwise) with in respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the CompanyXxxxxxx, (dvi) split, combination any disposal or reclassification lapse of any capital stock of the CompanyXxxxxxx Intellectual Property, (evii) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by any Lien (other than a change in GAAP or applicable Law, (fPermitted Lien) material Tax election inconsistent with past practices or the settlement or compromise of incurred on any material Tax liabilityproperty, (g) damage, destruction assets or loss rights of any material asset of the Company Xxxxxxx or any of its subsidiaries which materially affects the use or value thereof or a material part of Subsidiaries, (viii) any improvement Leased incurrence by the Company Xxxxxxx or any of its subsidiaries pursuant Subsidiaries of any liability which has had or is likely to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in have a Company Xxxxxxx Material Adverse Effect), (hix) grant any incurrence of Indebtedness or any guarantee by the Company Xxxxxxx or any of its subsidiaries to any officer Subsidiaries of any increase in compensation, except as was required under liability of any employment agreements set forth on Section 2.6(h) other person or entity outside of the Company Disclosure Scheduleordinary course of business, copies (x) to the knowledge of which have been made available Xxxxxxx, any development with respect to Purchaser, or regulatory approval of any granting by the Company products of Xxxxxxx or any of its subsidiaries Subsidiaries which has had or is likely to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practicehave a Xxxxxxx Material Adverse Effect, (ixi) grant by to the Company knowledge of Xxxxxxx, any development with respect to relationships with any contract manufacturer or contract research organization with which Xxxxxxx or any of its subsidiaries Subsidiaries has a business relationship which has had or is likely to have a Xxxxxxx Material Adverse Effect or (xii) any officer change in Xxxxxxx' Tax accounting methods, any new election made with respect to Taxes, any modification or revocation of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been existing election made available with respect to PurchaserTaxes, or any grant by the Company settlement or any of its subsidiaries to any employee other than an officer disposition of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanTax matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Roberts Pharmaceutical Corp), Agreement and Plan of Merger (Shire Pharmaceuticals Group PLC)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof of this Agreement (the "Company Filed SEC Documents"), (ii) as set forth or in Section 2.6 4.1(g) of the Company Disclosure Schedule, or (iii) for the Transactionssince December 31, since the Balance Sheet Date1998, the Company and has conducted its subsidiaries have carried on and operated their respective businesses in all material respects business only in the ordinary course of business consistent with past practice, and there has not occurred any: been (ai) event any event, occurrence or change that development of a state of circumstances which has had or would could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of the Company's capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any outstanding shares of capital stock or other securities of the CompanyCompany or any of its subsidiaries, (diii) any split, combination or reclassification of any of its capital stock or any issuance or the authorization of the Companyany issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fA) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any current or former director, officer or employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (compensation or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paybenefits, except in the ordinary course of business consistent with past practice, (jB) any granting by the Company or any of its subsidiaries to any such director, officer or employee of any increase in severance or termination pay (including the acceleration in the exercisability of Company Options or in the vesting of Shares (or other property) or the provision of any tax gross-up), except as was required under employment, severance or termination agreements or plans in effect as of December 31, 1998 which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, or (C) any entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, deferred compensation, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.termination
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Centris Group Inc), Agreement and Plan of Merger (HCC Insurance Holdings Inc/De/)
Absence of Certain Changes or Events. Except (i) as disclosed in the Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionshereof, since the Balance Sheet DateApril 30, 2003, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business and in a manner consistent with past practice, and since such date, there has not occurred any: been (ai) any event or change events have occurred that has have had or would reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect, Effect on the Company; (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company Capital Stock or any class redemption, purchase or other acquisition of capital stock any of the Company or any of its subsidiaries Capital Stock; (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, iii) (dA) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries Subsidiaries to any employee officer or director of the Company or any of its Subsidiaries of any increase in compensation, (B) any granting by the Company or any of its Subsidiaries to any such officer or director of any increase in severance or termination pay, (C) any granting by the Company or any of its Subsidiaries to any such officer, director or other key employees of any loans or any increases to outstanding loans, if any, (D) except for normal increases employment agreements in the ordinary course of business consistent with past practice with employees other than any executive officer of the Company and any entry by the Company or any of its Subsidiaries into any employment, severance or termination agreement with any such employee or executive officer or director, or (E) any increase in or establishment of any Benefit Plan (including amendment of existing Benefit Plans); (iv) any material damage, destruction or loss (whether or not covered by insurance) with respect to the Company or any of its Subsidiaries; (v) any material payment to an Affiliate of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, ; (ivi) grant any revaluation by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in of their assets; (vii) any mortgage, lien, pledge, encumbrance, charge, agreement, claim or acceleration of vesting or payment of) severance or termination pay, except as was required under restriction placed upon any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies material properties or assets of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to Subsidiaries; (viii) any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except material change in the ordinary course of business consistent with past practiceaccounting methods, (j) entry principles or practices used by the Company Company; or (ix) any of its subsidiaries into any (other action or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan event that would constitute a Company Plan (as hereinafter defined) have required the consent of Buyer pursuant to Section 5.1 of this Agreement had such action or (l) acceleration event occurred after the date of vesting of any Option, except acceleration previously provided for in the Stock Planthis Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Plato Learning Inc), Agreement and Plan of Merger (Lightspan Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet DateSheet, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects in the ordinary course of business course, in a manner consistent with past practice, and there has not occurred anybeen: (ai) event any event, occurrence or change that development of a state of circumstances or facts which has had or would could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, ; (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class shares of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company, or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any outstanding shares of capital stock of the Companyor other securities of, (d) splitor other ownership interests in, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, Subsidiaries; (fiii) material Tax election inconsistent with past practices or the settlement or compromise any amendment of any material Tax liability, (g) damage, destruction or loss term of any material asset outstanding security of the Company or any of its subsidiaries which materially affects Subsidiaries; (iv) any incurrence, assumption or guarantee by the use Company (other than guarantees of its Subsidiaries' obligations) or value thereof or a material part any of its Subsidiaries (other than guarantees of their Subsidiaries' obligations) of any improvement Leased indebtedness for borrowed money; (v) any creation or assumption by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in compensation, Lien (except as was required under contemplated by this Agreement) on any employment agreements set forth on Section 2.6(hasset; (vi) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee making of any increase loan, advance or capital contributions to or investment in compensationany person other than loans, except for normal increases advances or capital contributions to or investments in wholly owned Subsidiaries made in the ordinary course of business consistent with past practicepractices; (vii) any condemnation, seizure, damage, destruction or other casualty loss (iwhether or not covered by insurance) grant affecting the business or assets of the Company or any of its Subsidiaries; (viii) any transaction or commitment made, or any contract or agreement entered into, amended or terminated by the Company or any of its subsidiaries to Subsidiaries or any officer relinquishment by the Company or any Subsidiary of any increase contract or other right, in (or acceleration of vesting or payment of) severance or termination payeither case, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of material to the Company Disclosure Schedule, copies and its Subsidiaries taken as a whole; (ix) any change in any method of which have been made available to Purchaser, accounting or any grant accounting practice by the Company or any of its subsidiaries to Subsidiaries; (x) any employee other than an officer (A) grant of any increase in (or acceleration of vesting or payment of) severance or termination paypay to any director, officer or employee of the Company or any of its Subsidiaries, (B) entering into or renewal of any employment, deferred compensation, severance, retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its Subsidiaries, (C) increase in benefits payable under any existing severance or termination pay policies or employment agreements, or (D) except in the ordinary course of business consistent with past practice, (j) entry by increase in compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its subsidiaries into Subsidiaries; (xi) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its Subsidiaries, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (xii) any capital expenditure, or amendment commitment for a capital expenditure, for additions or improvements to property, plant and equipment in excess of $500,000, individually or $1,000,000 in the aggregate other than expenditures for planned build out of the Company's network that are in accordance with the budget agreed to between Parent and the Company; (xiii) except for capital expenditures and commitments referred to in subsection (xii) above, any acquisition or disposition of any existingmaterial assets or properties or any Intellectual Property (as defined in Section 3.11) employment, severance in one or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofmore transactions, or increase of benefits under, any plan that would constitute a Company Plan commitment in respect thereof; (xiv) any express or deemed election for Tax (as hereinafter defineddefined below) purposes or any offer to settle or compromise or any settlement or compromise of any liability with respect to Taxes (as defined below); (xv) any offers to existing Subscribers (as defined in Section 3.19(i)) for renewal at rates below the standard rates charged by the Company and its Subsidiaries; or (lxvi) acceleration of vesting any Outage (as defined below). As used herein, "Outage" means any complete loss of any Optionservice to any System, except acceleration previously provided for in the Stock Planincluding but not limited to any complete loss of network access, telephone, video, audio, Internet, data, bandwidth access, mail, web or other services.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (21st Century Telecom Group Inc), Agreement and Plan of Merger (RCN Corp /De/)
Absence of Certain Changes or Events. (a) Except (i) as disclosed in the Current SEC Documents Reports filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in of this Agreement or Section 2.6 3.6 of the Company Disclosure Schedule, or (iii) for the Transactionsexcept as contemplated by this Agreement, since the Balance Sheet DateJune 30, 2007, each of the Company and its subsidiaries have carried on and operated their respective businesses in all material respects Subsidiaries has conducted its business only in the ordinary course of business consistent with past practice, and there has not occurred anybeen: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class Capital Stock of capital stock the Company; (ii) any split, combination, reclassification or amendment of any term of any outstanding Capital Stock or other security of the Company or any of its subsidiaries Subsidiaries or (other than dividends by a direct issuance of Common Stock upon the exercise of any Company Options) any issuance or indirect wholly owned subsidiary the authorization of the issuance of any securities of the Company to or any of its parent)Subsidiaries, or other than in connection with the transactions contemplated hereby; (iii) any repurchase, redemption or other acquisition by the Company or any Subsidiary of its subsidiaries the Company of any capital stock outstanding Capital Stock or other securities of the Company or any Subsidiary of the Company, except as contemplated by the Stock Plans; (div) split, combination (A) any grant by the Company or reclassification any of its Subsidiaries to any officer of the Company or any of its Subsidiaries of any capital stock increase in compensation, except for increases in the ordinary course of business consistent with past practice or as required under employment or other agreements or benefit arrangements in effect as of June 30, 2007, or (B) any grant by the CompanyCompany or any of its Subsidiaries to any such officer of any increase in severance or termination pay, except as was required or provided for under any employment, severance, termination or other agreements or benefit arrangements in effect as of June 30, 2007; (ev) except as required by a change in financial or tax GAAP, any material change in accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a Subsidiaries; and (vi) any material part of any improvement Leased by casualties affecting the Company or any of and its subsidiaries pursuant to the Real Property Lease and which damageSubsidiaries, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in as a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaserwhole, or any granting by the Company material loss, damage or destruction to any of its subsidiaries to any employee of any increase in compensationtheir properties or assets, except for normal increases in the ordinary course of business consistent with past practice, (i) grant whether covered by the Company insurance or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plannot.
Appears in 2 contracts
Samples: Purchase Agreement (Internet America Inc), Purchase Agreement (Mihaylo Steven G)
Absence of Certain Changes or Events. Except (i) as disclosed for liabilities incurred in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionsconnection with this Agreement, since the Balance Sheet Datedate of the most recent financial statements included in the Filed Company SEC Documents, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company been any Material Adverse EffectChange, and from such date until the date hereof there has not been (bi) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Subsidiaries, other than (A) cash dividends payable by the Company in respect of shares of Company Common Stock consistent with past practice and not exceeding $0.11 per share of Company Common Stock per fiscal quarter or (B) dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)the Company or another Subsidiary wholly owned by the Company, or (ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former (1) director of the Company or (2) current employees with the Company or any of its Subsidiaries who are party to a change of control or severance agreement (all individuals described in the foregoing Sections 3.01(g)(iv)(A)(1) and (2) (collectively, the “Key Personnel”) of any increase in compensation, bonus or fringe or other benefits, except in the ordinary course of business consistent with past practice or as was required under any Company Benefit Agreement or Benefit Plan, (B) any granting by the Company or any of its Subsidiaries to any Key Personnel of (1) any increase in severance or termination pay or (2) any right to receive any severance or termination pay except for severance or termination pay received in the ordinary course of business consistent with past practice or as was required under any Company Benefit Agreement or Benefit Plan, (C) any entry by the Company or any of its Subsidiaries into, or any amendments of, (1) any employment, deferred compensation, consulting, severance, change of control, termination or indemnification Contract with any Key Personnel or any other director, officer or employee of the Company or any of its Subsidiaries or (2) any Contract with any Key Personnel or any other director, officer or employee of the Company or any of its Subsidiaries the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of the Merger (all such Contracts under this Section 3.01(g)(iv)(C), collectively, “Company Benefit Agreements”), (D) the removal or modification of any restrictions in any Company Benefit Agreement or Benefit Plan or awards made thereunder, except as required to comply with applicable Law or the terms or provisions of any Company Benefit Agreement or Benefit Plan in effect as of the date hereof and except as may be effected in the ordinary course of business consistent with past practice or (E) the adoption, amendment or termination of any Benefit Plan, other than, in the case of Sections 3.01(g)(iv)(A), 3.01(g)(iv)(B), 3.01(g)(iv)(C), and 3.01(g)(iv)(D), such increases, amendments, new agreements, removals, modifications or terminations that (1) do not provide for any increase in compensation or benefits for any individual Key Personnel that is material in relation to such person’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Company and its Subsidiaries, and (v) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanGAAP.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Valassis Communications Inc), Agreement and Plan of Merger (Advo Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in From the SEC Documents filed and publicly available not later than two days prior to Interim Balance Sheet Date through the date hereof (the "Filed SEC Documents")hereof, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not been, occurred anyor arisen: (a) any event or change condition of any character that has had or would be reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, Effect on the Company; (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries’ capital stock, or any repurchasepurchase, redemption or other acquisition by the Company of any of the Company’s capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, except for repurchases from Employees following their termination pursuant to the terms of stock option or purchase agreements existing as of the Interim Balance Sheet Date; (c) any split, combination or reclassification of any of the Company’s or any of its subsidiaries’ capital stock; (d) any granting by the Company or any of its subsidiaries of any capital stock of the Company, increase in compensation or fringe benefits to any Employee (dother than Consultants who are not Significant Consultants) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased payment by the Company or any of its subsidiaries pursuant of any bonus or any entry by the Company or one of its subsidiaries into any Contract (or amendment of an existing Contract) to grant or provide severance, acceleration of vesting, termination pay or other similar benefits; (e) the Real Property Lease and which damageexecution of any employment Contract or service Contract, destruction the extension of the term of any existing employment Contract or loss is not covered by insuranceservice Contract with any Employee, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether or any damage, destruction entry or loss is material or would result in a Company Material Adverse Effect), (h) grant other modification by the Company or any of its subsidiaries to any officer of any increase in compensationemployment, except as was required under severance, termination or indemnification Contract or any employment agreements set forth on Section 2.6(h) Contract the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting nature contemplated hereby; (f) entry by the Company or any of its subsidiaries to into (i) any employee licensing or other Contract providing for the use, acquisition or disposition of any increase Intellectual Property (as defined in compensation, except Section 2.19 hereof) other than (A) licenses of commercially available third party software applications for normal increases internal use by the Company or otherwise in the Company’s ordinary course of business consistent with past practice and (B) confidentiality agreements in the ordinary course of business consistent with past practice, or (iii) grant by the Company any amendment or any of its subsidiaries consent with respect to any officer material licensing or other Contract providing for the use, acquisition or disposition of any increase in (or acceleration of vesting or payment of) severance or termination payIntellectual Property, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except confidentiality agreements in the ordinary course of business consistent with past practice; (g) any change by the Company in its accounting methods, principles or practices (jincluding any change in depreciation or amortization policies or rates or revenue recognition policies), except as required by concurrent changes in GAAP; (h) any revaluation by the Company of any of its assets, including writing off promissory notes or accounts receivable, or any sale of assets of the Company; (i) entry by the Company or any of its subsidiaries into any Contract (other than the Voting Agreements) filed or amendment required to be filed by the Company with the SEC; (j) the incurrence, creation or assumption of any existingmaterial Encumbrance (other than a Permitted Encumbrance) employmentor any discharge of any material Encumbrance, severance any material Liability for borrowed money or termination agreement any material Liability or obligation as guaranty or surety with any officerrespect to the obligations of others who are not wholly-owned subsidiaries of the Company, (k) establishmentany purchase, adoptionoffer to purchase, amendment sale, offer to sell, option to purchase or modification ofsell, agreement to transfer any interest in, or increase any lease, right to use, sublease or other occupancy, of benefits under, any plan that would constitute a Company Plan Real Estate (as hereinafter defineddefined in Section 2.15(a)) by the Company or its subsidiaries; and (l) acceleration any announcement of vesting or any agreement by the Company, any of its subsidiaries, or any OptionEmployee on behalf of the Company, except acceleration previously provided for to do any of the things described in the Stock Planpreceding clauses (a) through (k) (other than negotiations or agreements with Parent and Merger Sub regarding the Transactions).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Genentech Inc), Agreement and Plan of Merger (Tanox Inc)
Absence of Certain Changes or Events. Except (i) as disclosed for liabilities incurred in connection with this Agreement or the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionstransactions contemplated hereby, since the Balance Sheet DateJanuary 1, 2000, the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practicecourse, and there has not occurred any: been (ai) the occurrence of an event or change that has had or would could reasonably be expected to haveresult in any material adverse effect on the Company, individually except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the aggregate, a Company Material Adverse Effecteffect of such changes on similarly situated companies, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant prior to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits date hereof (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (hA) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (iviii) grant any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cendant Corp), Agreement and Plan of Merger (Cendant Corp)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 4.08 of the Company Disclosure Schedule, Schedule or (iii) for in the TransactionsCompany SEC Reports, since the Balance Sheet DateDecember 31, 2002, the Company and has conducted its subsidiaries have carried on and operated their respective businesses in all material respects business in the ordinary course of business consistent with past practice, and there has not occurred anyoccurred: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a any Company Material Adverse Effect, ; (bii) sale any amendments or other disposition changes in the certificate of incorporation or pledge or other encumbrance upon a material amount bylaws of property or other assets the Company or any Real Property Lease as defined in Section 2.14 herein of its subsidiaries; (iii) any damage to, destruction or loss of any asset of the Company or any of its subsidiaries, except sales of inventory (whether or not covered by insurance) that has had or is reasonably likely to have a Company Material Adverse Effect; (iv) any change by the Company in its accounting methods, principles or practices; (v) any material change to any Company Stock Option Plans or Company Employee Plans, including the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment establishment of any dividend new plans or any amendment that extends the extension of coverage under any plan to new groups of employees or other distribution Persons not previously covered; (whether in cash, stock vi) any restructuring or property) with respect to any class of capital stock reorganization of the Company or any of its subsidiaries subsidiaries; (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or vii) any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any of its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (viii) any revaluation of any of the Company's or any subsidiary's assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (eix) change in financial any sale, pledge, disposition of or tax accounting methods, principles or practices by encumbrance upon a material amount of property of the Company or of any of its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, the ordinary course of business and consistent with past practice; (fx) any material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability; (xi) any declaration, (g) damage, destruction issuance or loss payment of any material asset dividend or other distribution (whether in cash, stock or property or any combination thereof) other than a dividend or distribution by a wholly-owned subsidiary to the Company; or (xii) the creation of any indebtedness for borrowed money or the issuance of any debt securities or the assumption, guarantee (other than guarantees of bank debt of a subsidiary entered into in the ordinary course of business) or endorsement or other accommodation whereby the Company or any of its subsidiaries which materially affects became responsible for, the use or value thereof or a material part obligations of any improvement Leased by person, or the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer making of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, loans or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination payadvances, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pinnacor Inc), Agreement and Plan of Merger (Marketwatch Com Inc)
Absence of Certain Changes or Events. Except (i) for liabilities incurred in connection with this Agreement or the transactions contemplated hereby and except as permitted by Section 4.1(a), or as disclosed in the any Company SEC Documents Document filed and publicly available not later than two days prior to the date hereof (as amended to the date hereof, "Company Filed SEC Documents")) since January 1, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date2000, the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects business only in the ordinary course of business consistent with past practicecourse, and there has not occurred any: been (ai) event or any material adverse change that has had or would reasonably be expected to have, individually or in the aggregateCompany, a Company Material Adverse Effectincluding, but not limited to, any material adverse change arising from or relating to fraudulent or unauthorized activity, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock, other than regular quarterly cash dividends on the Company Common Stock and dividends payable on the Company Preferred Stock in accordance with their terms, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options, in each case awarded prior to the date hereof in accordance with their present terms, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant prior to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits date hereof (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (hA) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other key employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for normal increases in the ordinary course of business consistent with past practicebusiness, (iB) grant any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or key employee of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under or (C) any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or key employee, (v) except insofar as may have been disclosed in Company Filed SEC Documents or required by a change in GAAP or SAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any employee material change in actuarial, pricing, or investment policies, (viii) any material insurance transaction other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, practice or (jix) entry by the Company any agreement or commitment (contingent or otherwise) to do any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Citigroup Inc), Agreement and Plan of Merger (Associates First Capital Corp)
Absence of Certain Changes or Events. Except (a) Since February 28, 2002, the Company has conducted its business only in the ordinary and usual course and in a manner consistent with past practice and, since such date, there has not been any (i) as disclosed purchase, redemption, retirement, or other acquisition by the Company from the Company Shareholders of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), respect of shares of capital stock; (ii) as set forth in Section 2.6 of payment or increase by the Company Disclosure Scheduleof any bonuses, salaries, or other compensation to any stockholder, director, officer, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects except in the ordinary course of business consistent business) employee or entry into any employment, severance, or similar contract with past practiceany director, and there has not occurred any: officer, or employee; (aiii) event adoption of, or change that has had or would reasonably be expected to have, individually or increase in the aggregatepayments to or benefits under, a any Company Material Adverse Effect, Benefit Plan (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein 2.16(a)); (iv) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, that is reasonably likely to have a Material Adverse Effect; (v) entry into, termination of, or receipt of notice of termination of (A) any license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (B) any Material Agreement or transaction involving a total remaining commitment by or to the Company or any of its subsidiaries, except at least $5,000; (vii) sale (other than sales of inventory in the ordinary course of business consistent with past practicebusiness), (c) declarationlease, setting aside or payment other disposition of any dividend asset or other distribution (whether in cash, stock or property) with respect to any class of capital stock property of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)mortgage, pledge, or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries imposition of any capital stock Lien on any material asset or property of the Company, (d) splitincluding the sale, combination lease, or reclassification other disposition of any capital stock of the Company, Intellectual Property Rights; (evii) cancellation or waiver of any claims or rights with a value to the Company in excess of $5,000; (viii) material change in financial or tax the accounting methods, principles or practices methods used by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, Company; (fix) material Tax election inconsistent with past practices or the settlement or compromise incurrence of any material Tax liability, (g) damage, destruction indebtedness for borrowed money or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in capital lease obligations outside the ordinary course of business; (x) guaranty of any indebtedness of another Person; (xi) acquisition by merger or consolidation with, or by purchasing a substantial equity interest in, or by any other manner, any business consistent with past practiceor any Person; (xii) acceleration, termination (iother than end-of-term expirations), modification, cancellation, declaration of a default under or indication of an intent to terminate any Material Agreement (or series of related Material Agreements) grant by involving more than $5,000 to which the Company is a party or by which it is bound; (xiii) any of its subsidiaries to any officer of any increase in capital expenditure (or acceleration series of vesting related capital expenditures) either involving more than $5,000 or payment ofoutside the ordinary course of business; (xiv) severance delay or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) postponement of the Company Disclosure Schedulecollection of accounts receivable or the payment of accounts payable and other liabilities outside the ordinary course of business; (xvi) loan to, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination payor, except in the ordinary course of business consistent with past practicebusiness, entry into any other transaction with, any of its directors, officers and employees; (jxvi) entry into any transaction other than in the ordinary course of business; (xvii) agreement, whether oral or written, by the Company or to do any of its subsidiaries into the foregoing; and (xviii) any (other change, event, development or amendment of any existing) employmentcircumstance affecting the Company which, severance individually or termination agreement with any officerin the aggregate, (k) establishment, adoption, amendment or modification ofhas, or increase of benefits underis reasonably likely to have, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanMaterial Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Qiagen Nv), Agreement and Plan of Merger (Qiagen Nv)
Absence of Certain Changes or Events. Except (i) Since December 31, 2003, except as contemplated by this Agreement or any other Transaction Agreement or as disclosed in the any Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as Report or set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet DateSchedule 3.09, the Company and its subsidiaries the Subsidiaries have carried on and operated conducted their respective businesses in all material respects in the ordinary course of business consistent with past practice, Ordinary Course and there has not occurred any: been (a) any event or change that has had events having, or would reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition any revaluation by the Company of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein asset (including, without limitation, any writing down of the Company or any of its subsidiaries, except sales value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (c) any entry by the Company or any Subsidiary into any commitment or transaction except in the ordinary course of business and consistent with past practice, (d) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to of any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)redemption, or any repurchase, redemption purchase or other acquisition by the Company or of any of its subsidiaries of any capital stock of the Companysecurities, (de) any split, combination or reclassification of any of its capital stock or any issuance or the authorization of the Companyany issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (ef) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been disclosed in the SEC Filings or required by a change in GAAP GAAP, any change in accounting methods, principles or applicable Lawpractices, (fg) material Tax election inconsistent with past practices any making or the settlement or compromise revocation of any material Tax liability, (g) damage, destruction elections or loss any settlement or compromises of any material asset federal, state, foreign or local Tax liability or any waivers or extensions of the statute of limitations in respect of such Taxes, (h) any making of loans, advances or capital contributions to, or investments in, any Person or payment of any fees or expenses to any of the Company's shareholders or any Affiliate of any of such shareholders; (i) any mortgage or pledge of any Lien of any of its assets, or acquisition of any assets or sale, assignment, transfer, conveyance, lease or other disposition of any assets of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationSubsidiary, except for normal increases assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practicebusiness, (ij) any discharge or satisfaction of any Lien, or payment of any obligation or liability (fixed or contingent), except in the Ordinary Course and which, in the aggregate, would not be material to the Company and its Subsidiaries taken as a whole; (k) any cancellation or compromises of any debt or claim or amendment, cancellation, termination relinquishment, waiver or release of any contract or right except in the Ordinary Course and which, in the aggregate, would not be material to the Company and its Subsidiaries taken as a whole; (l) any material delay in making any capital expenditure for an approved capital project as set forth in the Company's budget in excess of $25,000 individually or $100,000 in the aggregate, or the making or commitment to make any capital expenditures or capital additions or betterments in excess of $100,000 individually or $250,000 in the aggregate; (m) any incurrence of any indebtedness for borrowed money in an amount in excess of $25,000 in the aggregate; (n) any grant by of any license or sublicense of any rights under or with respect to any Intellectual Property, other than pursuant to customer contracts entered into in the Ordinary Course; (o) any institution or settlement of any material Legal Proceeding; (p) other than pursuant to the contracts referred to in Section 3.11, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any officers or key employees of the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paySubsidiary, except as was required under for salary increases and benefit accruals in the Ordinary Course, or (q) any employment, severance or termination agreements agreement to do anything set forth on in this Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan3.09.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Share (Daleen Technologies Inc), Execution Version (Behrman Capital Ii Lp)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure ScheduleBalance Sheet there has not been: (a) any Material Adverse Effect on the Company, (b) any declaration, setting aside or payment of any dividend on, or other distribution (iiiwhether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any repurchase for the Transactions, since the Balance Sheet Date, value or redemption by the Company and or any of its subsidiaries have carried on and operated their respective businesses Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries except for repurchases from Employees following termination of employment pursuant to the terms of applicable pre-existing stock option or purchase agreements, (c) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (d) any granting by the Company or any of its Subsidiaries of any material (whether individually or in all material respects the aggregate) increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practicepractice (other than to directors or officers of the Company), and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariesSubsidiaries of any material (whether individually or in the aggregate) bonus, except sales for bonuses made in the ordinary course of inventory business consistent with past practice (other than to directors or officers of the Company), or any granting by the Company or any of its Subsidiaries of any material (whether individually or in the aggregate) increase in severance or termination pay or any entry by the Company or any of its Subsidiaries into any material (whether individually or in the aggregate) employment, severance, termination or indemnification agreement, (e) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.7(a)(i)), other than non-exclusive license, supply and distribution agreements entered into in the ordinary course of business consistent with past practice, (cf) declaration, setting aside or payment of any dividend or other distribution material (whether individually or in cash, stock the aggregate) amendment or property) consent with respect to any class of capital stock Company Material Contract in effect since the date of the Company or Balance Sheet, (g) any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition material change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP or (h) any material revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planassets.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (McData Corp), Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents (including exhibits thereto) filed and publicly available not later than two days prior to the date hereof of this Agreement and the proof dated June 13, 1998 of Amendment No. 1 to the Registration Statement on Form S-3 of the Company (Registration No. 333-55883) (the "S-3 Amendment") in the form heretofore delivered to Purchaser (the "Filed SEC Documents"), (ii) as set forth or in Section 2.6 the Disclosure Letter, from the date of the Company Disclosure Schedule, or (iii) for most recent audited financial statements included in the Transactions, since Filed SEC Documents to the Balance Sheet Datedate of this Agreement, the Company and each of its subsidiaries have carried on and operated their respective businesses in all material respects Subsidiaries has conducted its business only in the ordinary course of business consistent with past practice, and there has not occurred any: been (ai) any material adverse effect on the Company and its Subsidiaries taken as a whole, (ii) any event or change occurrence that has had or would reasonably be expected to have, individually or in have a material adverse effect on the aggregate, Company and its Subsidiaries taken as a Company Material Adverse Effectwhole, (biii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividends or distributions in respect of the Shares other than the regular quarterly dividend in the amount of $0.70 per Share, (iv) any split, combinations or other distribution (whether in cash, reclassification of any of its capital stock or propertyany issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (v) with respect except as contemplated by Section 7.4 hereof, (A) any granting by the Company or any of its Subsidiaries to any class of capital stock executive officer of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) or benefit plans in effect as of the Company Disclosure Scheduledate of the most recent audited financial statements included in the Filed SEC Documents, copies of which have been made available to Purchaser, or (B) any granting by the Company or any of its subsidiaries Subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any such officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) in effect as of the Company Disclosure Scheduledate of the most recent audited financial statements included in the Filed SEC Documents, copies of which have been made available to Purchaser, or (C) any grant entry by the Company or any of its subsidiaries to Subsidiaries into any employment, severance or termination agreement or arrangement with any officer or employee other than an officer of or (D) any increase in benefits available under or establishment of any Benefit Plan (as defined in Section 4.10) (including the granting of stock options, stock appreciation rights, performance awards or restricted stock awards or the amendment or acceleration of vesting of any existing stock options, stock appreciation rights, performance awards or payment of) severance or termination payrestricted stock awards), except in the ordinary course of business consistent with past practice, (jvi) entry any damage, destruction or loss to physical properties owned or used by the Company, whether or not covered by insurance, that would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, (vii) any revaluation by the Company or of any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officermaterial assets, (kviii) establishment, adoption, amendment or modification of, or increase of benefits underexcept as provided in Section 7.4, any plan that would constitute a Company Plan (as hereinafter defined) actual or (l) approved acceleration of vesting or conversion of contingent restricted shares of stock or other amendment to or modification of outstanding Company Stock Options, DSCs, phantom stock units or contingent of performance-based restricted stock, or (ix) any material change by the Company in its accounting principles or practices except insofar as may have been required by a change in generally accepted accounting principles. Except as and to the extent set forth in the Company's Annual Report on Form 10-K for the year ended December 31, 1997, or in any subsequent Filed SEC Document or the Disclosure Letter, neither the Company nor any of its Subsidiaries has any liabilities or obligations of any Optionnature, whether or not accrued, contingent or otherwise, that would be required by generally accepted accounting principles to be reflected on a consolidated balance sheet of the Company and its Subsidiaries (including the notes thereto), except acceleration previously provided for liabilities or obligations incurred in the Stock Planordinary course of business since December 31, 1997, that would not, individually or in the aggregate, have a material adverse effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lyondell Petrochemical Co), Agreement and Plan (Lyondell Petrochemical Co)
Absence of Certain Changes or Events. Except Since the date of the Company ------------------------------------ Balance Sheet there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or independent contractors following their termination pursuant to the terms of their pre- existing stock option or purchase agreements, (diii) any split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company 's or any of its subsidiaries which materially affects the use or value thereof or a material part of subsidiaries' capital stock, (iv) any improvement Leased granting by the Company or any of its subsidiaries pursuant to of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the Real Property Lease and which damageordinary course of business consistent with past practice, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant payment by the Company or any of its subsidiaries to any officer of any increase in compensationbonus, except as was required under any employment agreements set forth on Section 2.6(h) for bonuses made in the ordinary course of the Company Disclosure Schedule, copies of which have been made available to Purchaserbusiness consistent with past practice, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationseverance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, except for normal increases severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9) other than licenses in the ordinary course of business consistent with past practice, (ivi) grant any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, (vii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (viii) any revaluation by the Company of any of its subsidiaries to any officer assets, including, without limitation, writing down the value of any increase in (capitalized inventory or acceleration of vesting writing off notes or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee accounts receivable other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planbusiness.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Palm Inc), Agreement and Plan of Reorganization (Extended Systems Inc)
Absence of Certain Changes or Events. Except (i) for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents filed and publicly available not later than two days prior or as expressly permitted pursuant to the date hereof Section 4.01(a)(i) through (the "Filed SEC Documents"xvi), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datedate of the most recent audited financial statements included in the Filed Company SEC Documents, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company been any Material Adverse EffectChange, and from such date until the date hereof there has not been (bi) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)shareholders, or (ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or its Subsidiaries of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any current or former director, officer, employee or consultant not previously receiving or entitled to receive such type of compensation or benefit, except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business consistent with past practice or as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (B) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries of any right to receive any increase in severance or termination pay, or (C) any entry by the Company or any of its Subsidiaries into, or any amendments of, (1) any employment, deferred compensation, consulting, severance, change of control, termination or indemnification agreement or any other agreement with or involving any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries or (2) any agreement with any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, "Company Benefit Agreements"), (D) any adoption of, any amendment to or any termination of any Company Benefit Plan, or (E) any payment of any benefit under, or the grant of any award under, or any amendment to, or termination of, any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of stock options, "phantom" stock, stock appreciation rights, restricted stock, "phantom" stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (v) any damage, destruction or loss to any tangible asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (vi) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable Law, (fvii) any material Tax tax election inconsistent with past practices or the any settlement or compromise of any material Tax income tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Johnson & Johnson), Merger Agreement (3 Dimensional Pharmaceuticals Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior Since December 31, 2012 to the date hereof (hereof, there has not been any Company Material Adverse Effect. Since December 31, 2013 to the "Filed SEC Documents")date hereof, except as expressly contemplated by this Agreement, (iia) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects in the ordinary course and in a manner consistent with past practice, (b) the Company has not taken or permitted any of its Subsidiaries to take any of the following actions: (i) declare, set aside or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of the Shares (other than dividends or other distributions from any Subsidiary to the Company or to another wholly-owned Subsidiary), or redeem, purchase or otherwise acquire, directly or indirectly, any of its shares or other securities (other than in connection with the settlement of any Company Share Awards in accordance with the appropriate Share Incentive Plans and this Agreement) or (ii) adopt, pass any resolution to approve or make any petition or similar proceeding or order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of any Group Company (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company), (c) there has not been any material change in any method of accounting or accounting practice by the Company or any of its Subsidiaries, (d) other than in the ordinary course of business and consistent with past practice (including with respect to amount and timing), there has not been any material increase in the compensation or benefits payable or to become payable to its officers or key employees, (e) the Group Companies have not incurred Indebtedness in excess of US$70,000,000 in the aggregate, (f) none of the Group Companies has (i) acquired or made any capital contributions to or investments in any business or entity or (ii) acquired any assets outside of the ordinary course of business consistent with past practice, and there has not occurred any: (ag) event or change that has had or would reasonably be expected to haveno receiver, individually or in the aggregatetrustee, a Company Material Adverse Effect, (b) sale administrator or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined similar person has been appointed in Section 2.14 herein of relation to the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment affairs of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Group Company or its subsidiaries, except insofar as may have been required by a change in GAAP property or applicable Law, (f) any part thereof material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of to the Company or any of and its subsidiaries which materially affects the use or value thereof or Subsidiaries taken as a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planwhole.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (AutoNavi Holdings LTD), Agreement and Plan of Merger (Alibaba Group Holding LTD)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents Company Reports filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) of this Agreement or as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) Schedule and except for the Transactionstransactions contemplated hereby, since from May 28, 2000 (the "Company Balance Sheet Date") through the date hereof, the Company and its subsidiaries subsidiaries, taken as a whole, have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business and in a manner consistent with past practice, practice and there has not occurred anybeen: (a) event any damage, destruction or change that has had loss (whether or would reasonably be expected not covered by insurance) with respect to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other any assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiariessubsidiaries that would have a Company Material Adverse Effect; (b) any material change by the Company or any of its subsidiaries in their accounting methods, principles or practices (except sales of inventory in the ordinary course of business consistent with past practice, as may be required by applicable Law or GAAP); (c) any declaration, setting aside or payment of any dividend dividends or other distribution (whether distributions in cash, stock or property) with respect to any class of shares of the capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parentpermitted in Article V), or any repurchaseredemption, redemption purchase or other acquisition by the Company or any of its subsidiaries of any capital of their securities (other than repurchases after the Company Balance Sheet Date pursuant to stock of repurchase programs disclosed in the Company, Company Reports); (d) any split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiaries, except insofar as may have been required by a change in GAAP subsidiaries or applicable Law, (f) material Tax election inconsistent with past practices any issuance or the settlement or compromise authorization of any material Tax liability, (g) damage, destruction or loss issuance of any material asset other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company or any of its subsidiaries which materially affects subsidiaries; (e) any acquisition, divestiture, or investment in the use equity or value thereof or a material part debt securities of any improvement Leased by person (including in any joint venture or similar arrangement) material to the Company or and its subsidiaries, taken as a whole; (f) any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (commitment or amendment transaction material to the Company and its subsidiaries, taken as a whole, other than in the ordinary course of any existing) employment, severance or termination agreement business and consistent with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) past practice; or (lg) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanCompany Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dean Foods Co), Agreement and Plan of Merger (Suiza Foods Corp)
Absence of Certain Changes or Events. Except (i) for liabilities incurred in connection with this Agreement or the transactions contemplated hereby and except as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"permitted by Section 4.1(a), (ii) as set forth in Section 2.6 of the Company Disclosure Schedulesince January 1, or (iii) for the Transactions, since the Balance Sheet Date1997, the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects business only in the ordinary course of business consistent with past practiceor as disclosed in any Company SEC Document filed since such date and prior to the date hereof (as amended to the date hereof, "Company Filed SEC Documents"), and there has not occurred any: been (ai) event or any material adverse change that has had or would reasonably be expected to have, individually or in the aggregateCompany, a Company Material Adverse Effectincluding, but not limited to, any material adverse change arising from or relating to fraudulent or unauthorized activity, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock, other than regular quarterly cash dividends on the Company Common Stock and dividends payable on the Company Preferred Stock in accordance with their terms, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon conversion of Company Convertible Securities or upon the exercise of Company Employee Stock Options, in each case awarded prior to the date hereof in accordance with their present terms, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant prior to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits date hereof (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (hA) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other key employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for normal increases in the ordinary course of business consistent with past practicebusiness, (iB) grant any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or key employee of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under or (C) any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into into, or any (or amendment of of, any existing) employment, severance deferred compensation, consulting, severance, termination or termination indemnification agreement with any officersuch current or former director, executive officer or key employee, (kv) establishmentexcept insofar as may have been disclosed in Company Filed SEC Documents or required by a change in GAAP, adoptionany change in accounting methods, amendment principles or modification ofpractices by the Company affecting its assets, liabilities or business, or increase of benefits under(vi) except insofar as may have been disclosed in Company Filed SEC Documents, any plan that would constitute a tax election by the Company Plan (as hereinafter defined) or (l) acceleration of vesting its subsidiaries or any settlement or compromise of any Option, except acceleration previously provided for in income tax liability by the Stock PlanCompany or its subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Travelers Group Inc), Agreement and Plan of Merger (Salomon Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior From December 31, 2009 to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datethis Agreement, the Company and its subsidiaries Subsidiaries have carried on and operated conducted, in all material respects, their respective businesses in all material respects only in the ordinary course of business consistent with past practice. Since December 31, and 2009, there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company been any Material Adverse Effect. From September 30, 2010 to the date of this Agreement, there has not been (bA) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (Subsidiaries’ capital stock or other than equity or voting interests, except for dividends by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent), (B) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries, (C) any repurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, (dD)(1) splitany grant by the Company or any of its Subsidiaries to any current or former director, combination officer, employee, contractor or reclassification consultant of the Company or any of its Subsidiaries (collectively, “Company Personnel”) of any capital stock bonus or award opportunity, any loan or any increase in any type of compensation or benefits, except for grants of normal bonus opportunities and normal increases of base cash compensation, in each case, in the ordinary course of business consistent with past practice, or (2) any payment by the Company or any of its Subsidiaries to any Company Personnel of any bonus or award, (E) any grant by the Company or any of its Subsidiaries to any Company Personnel of any severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein or of the Companyright to receive any severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein, (eF) any adoption or establishment of or entry by the Company or any of its Subsidiaries into, any amendment of, modification to or termination of, or agreement to amend, modify or terminate, or any termination of (or announcement of an intention to amend, modify or terminate), (1) any employment, deferred compensation, change in control, severance, termination, employee benefit, loan, indemnification, retention, equity or equity-based compensation, consulting or similar Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, (2) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement (alone or in combination with any other event) or (3) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any compensation or benefit to be provided to any Company Personnel (all such Contracts under this clause (F), including any such Contract that is entered into on or after the date of this Agreement, collectively, “Benefit Agreements”), (G) any grant or amendment of any award under any Benefit Plan or Benefit Agreement (including the grant or amendment of Stock Options, RSUs, stock appreciation rights, restricted shares, performance units, stock repurchase rights or other equity or equity-based compensation) or the removal or modification of any restrictions in any such award, (H) any payment to any Company Personnel of any compensation or benefit not provided for under any Benefit Plan or Benefit Agreement, other than the payment of base cash compensation in the ordinary course of business consistent with past practice, (I) the taking of any action to accelerate, or that could reasonably be expected to result in the acceleration of, the time of vesting or payment of any rights, compensation, benefits or funding obligations under any Benefit Plan or Benefit Agreement or otherwise, (J) any change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiariesSubsidiaries, except insofar as may have been required by a change in GAAP or applicable LawLaw or (K) any material tax election or change in any material tax election, (f) material Tax election inconsistent with past practices or the any settlement or compromise of any material Tax liability, (g) damage, destruction tax liability or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or amendment to a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plantax return.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Qualcomm Inc/De), Agreement and Plan of Merger (Atheros Communications Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior From December 31, 2014 to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datethis Agreement, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses only in the ordinary course consistent in all material respects in the ordinary course of business consistent with past practice, practice and there has not occurred any: been (aA) event any state of facts, change, development, event, effect (including any effect resulting from an occurrence prior to December 31, 2014), condition, occurrence, action or change that has had or would reasonably be expected to haveomission that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect, (bB) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (Subsidiaries’ capital stock or other than equity or voting interests, except for dividends by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent), (C) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries, (D) any repurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than pursuant to the forfeiture conditions of stock options or restricted shares or the cashless exercise or tax withholding provisions of stock options or restricted shares, as applicable, in each case in accordance with the applicable Company Stock Plan as in effect on the date of this Agreement), (dE)(1) splitany grant by the Company or any of its Subsidiaries to any current or former director, combination officer, employee, contractor or reclassification consultant of the Company or any of its Subsidiaries (collectively, “Company Personnel”) of any capital stock bonus or award opportunity, any loan or any increase in any type of compensation or benefits, except for grants of normal bonus opportunities and normal increases of base cash compensation, in each case, in the ordinary course of business consistent with past practice, or (2) any payment by the Company or any of its Subsidiaries to any Company Personnel of any bonus or award, except for bonuses or awards paid prior to the date of this Agreement in the ordinary course of business consistent with past practice, (F) any grant by the Company or any of its Subsidiaries to any Company Personnel of any severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein or of the Companyright to receive any severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein, (eG) any adoption or establishment of or entry by the Company or any of its Subsidiaries into, any amendment of, modification to or termination of, or agreement to amend, modify or terminate, or any termination of (or announcement of an intention to amend, modify or terminate), (1) any employment, deferred compensation, change in control, severance, termination, employee benefit, loan, indemnification, retention, equity or equity‑based compensation, consulting or similar Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, (2) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement (alone or in combination with any other event), (3) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, concerning non-competition, non-solicitation or customers or employees, non-disclosure of information, ownership of Intellectual Property Rights or any other restrictive covenant or (4) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any compensation or benefit to be provided to any Company Personnel (all such Contracts under this clause (G), including any such Contract that is entered into on or after the date of this Agreement, collectively, “Benefit Agreements”), (H) any grant or amendment of any award under any Benefit Plan or Benefit Agreement (including the grant or amendment of Stock Options, Restricted Shares, restricted stock units, stock appreciation rights, performance units, stock repurchase rights or other equity or equity‑based compensation) or the removal or modification of any restrictions in any such award, (I) any payment to any Company Personnel of any compensation or benefit not provided for under any Benefit Plan or Benefit Agreement, other than the payment of base cash compensation or incentive or bonus payments in the ordinary course of business consistent with past practice, (J) other than the execution and delivery of this Agreement, the taking of any action to accelerate, or that is reasonably likely to result in the acceleration of, the time of vesting or payment of any rights, compensation, benefits or funding obligations, or the making of any material determinations, under any Benefit Plan or Benefit Agreement or otherwise, (K) any material change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiariesSubsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fL) any material Tax tax election inconsistent with past practices or the change in any material tax election or any settlement or compromise of any material Tax tax liability, (gM) damage, destruction any material write-down by the Company or loss any of its Subsidiaries of any of the material asset assets of the Company or any of its subsidiaries which materially affects Subsidiaries or (N) any licensing or other agreement with regard to the use acquisition or value thereof or a material part disposition of any improvement Leased by the Company material Intellectual Property or any of its subsidiaries pursuant to the Real Property Lease and which damagerights thereto, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than nonexclusive licenses granted in the ordinary course of the business of the Company and its Subsidiaries consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merge Healthcare Inc), Agreement and Plan of Merger (Merge Healthcare Inc)
Absence of Certain Changes or Events. Except (i) as disclosed Since September 30, 1996, CompCore has conducted its business in the SEC Documents filed ordinary course and publicly available not later than two days prior in a manner consistent with past practices and, since such date, CompCore has not: (a) suffered any event or occurrence that has had a Material Adverse Effect on CompCore; (b) suffered any damage, destruction or loss, whether covered by insurance or not, materially and adversely affecting its properties or business; (c) granted any material increase in the compensation payable or to the date hereof become payable by CompCore to its officers or employees; (the "Filed SEC Documents")d) declared, (ii) as set forth aside or paid any dividend or made any other distribution on or in Section 2.6 respect of the Company Disclosure Scheduleshares of its capital stock or declared any direct or indirect redemption, retirement, purchase or other acquisition of such shares; (e) issued any shares of its capital stock or any warrants, rights, or options for, or entered into any commitment relating to such capital stock; (iiif) made any change in the accounting methods or practices it follows, whether for the Transactionsgeneral financial or tax purposes, since the Balance Sheet Dateor any change in depreciation or amortization policies or rates; (g) sold, the Company and its subsidiaries have carried on and operated their respective businesses in all leased, abandoned or otherwise disposed of any real property or any material respects amounts of machinery, equipment or other operating property other than in the ordinary course of business consistent with past practicebusiness; (h) sold, and there has not occurred any: assigned, transferred, licensed or otherwise disposed of any patent, trademark, trade name, brand name, copyright (a) event or change that has had pending application for any patent, trademark or would reasonably be expected to havecopyright), individually invention, work of authorship, process, know-how, formula or in the aggregate, a Company Material Adverse Effect, (b) sale trade secret or interest thereunder or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, intangible asset except sales of inventory for standard end-user license transactions entered into in the ordinary course of business consistent with past practice, its business; (ci) declaration, setting aside entered into any material commitment or payment of transaction (including without limitation any dividend borrowing or other distribution (whether in cash, stock or propertycapital expenditure) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, business; (ij) grant by the Company or incurred any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paymaterial liability, except in the ordinary course of business and consistent with past practice, ; (jk) entry by the Company permitted or allowed any of its subsidiaries property or assets to be subjected to any mortgage, deed of trust, pledge, lien, security interest or other encumbrance of any kind, except for liens for current taxes not yet due and purchase money security interests incurred in the ordinary course of business; (l) made any capital expenditure or commitment for additions to property, plant or equipment individually in excess of $20,000, or in the aggregate, in excess of $75,000; (m) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any (agreement or amendment arrangement with any of its officers, directors or shareholders or any affiliate of any existingof the foregoing, other than employee compensation and benefits and reimbursement of employment related business expenses incurred in the ordinary course of business; (n) employment, severance agreed to take any action described in this Section 3.8 or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that which would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting breach of any Option, except acceleration previously provided for of the representations or warranties of CompCore contained in the Stock Plan.this Agreement; or 8
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Cismas Sorin C), Agreement and Plan of Reorganization (Haber George T)
Absence of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the most recent Financial Statement to the date of this Agreement, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company’s capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company’s capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased granting by the Company or any of its subsidiaries Subsidiaries of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice or pursuant to the Real Property Lease and which damageany Plan, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant payment by the Company or any of its subsidiaries Subsidiaries of any bonus, except for bonuses made in the ordinary course of business consistent with past practice or pursuant to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to PurchaserPlan, or any granting by the Company or any of its subsidiaries to any employee Subsidiaries of any increase in compensationseverance or termination pay or any entry by the Company or any of its Subsidiaries into any currently effective employment, except for normal increases severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property other than licenses and services agreements in the ordinary course of business consistent with past practicepractice or any amendment or consent with respect to any licensing or services agreement, (ivi) grant any material change by the Company or any of its subsidiaries to any officer of any increase Subsidiaries in (its accounting methods, principles or acceleration of vesting or payment of) severance or termination paypractices, except as was required under by concurrent changes in U.S. GAAP, (vii) any employment, severance or termination agreements set forth on Section 2.6(i) change in the auditors of the Company Disclosure Schedule, copies of which have been made available to PurchaserCompany, or (viii) any grant material revaluation by the Company or any of its subsidiaries to any employee other than an officer Subsidiaries of any increase in (of its material assets, including, without limitation, writing down the value of capitalized inventory or acceleration writing off notes or accounts receivable or any sale of vesting or payment of) severance or termination pay, except in the ordinary course assets of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employmentSubsidiaries, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for other than in the Stock Planordinary course of business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Pivotal Acquisition Corp), Agreement and Plan of Reorganization (Pivotal Investment Corp II)
Absence of Certain Changes or Events. Except From March 31, ------------------------------------ 1999 through the date of this Agreement, there has not been (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")any event, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, occurrence or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to havecondition which, individually or in the aggregate, would be reasonably likely to have a Company Material Adverse Effect, (bii) sale any amendments or other disposition changes in the Certificate of Incorporation or pledge or other encumbrance upon a material amount Bylaws of property or other assets or the Company, (iii) any Real Property Lease as defined in Section 2.14 herein of revaluation by the Company or any of its subsidiariesSubsidiaries of any of their respective assets, except sales including, without limitation, write-offs of inventory accounts receivable, other than in the ordinary course of business the Company's and its Subsidiaries' businesses consistent with past practicehistorical practices, (civ) any material change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, (v) any entry by the Company or any Subsidiary into any contract material to the Company and the Subsidiaries, taken as a whole, (vi) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to of any class of capital stock of the Company or any redemption, repurchase or other acquisition of any of its subsidiaries securities (other than regular quarterly dividends by a direct or indirect wholly owned subsidiary on the shares of Common Stock and regular dividends on the Company to its parentshares of ESOP Preferred Stock), or (vii) any repurchase, redemption or other acquisition by event pursuant to which the Company or any of its subsidiaries Subsidiaries (A) incurred any liabilities (direct, contingent or otherwise) which are material to the Company and its Subsidiaries, taken as a whole, or (B) engaged in any transaction or entered into any agreement material to the Company and its Subsidiaries, taken as a whole, in each of clause (A) and (B) outside of the ordinary course of business, or (viii) other than pursuant to the contractual arrangements referred to in Section 3.10 and Annex B, any increase in or establishment of any capital bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the Company, (d) split, combination compensation payable or reclassification of to become payable to any capital stock of the Company, (e) change in financial officers or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset key employees of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paySubsidiary, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nalco Chemical Co), Agreement and Plan of Merger (H2o Acquisition Co)
Absence of Certain Changes or Events. (a) Except as and to the extent disclosed in the Company SEC Reports filed on or before the date hereof, since June 30, 2004 (the “Company Balance Sheet Date”), (i) as disclosed the Company and its Subsidiaries have not incurred any liability or obligation (indirect, direct or contingent), or entered into any oral or written agreement or other transaction, that is not in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")ordinary course of business, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries Subsidiaries have carried on and operated not sustained any material loss or material interference with their respective businesses business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance), (iii) there has been no change in all material respects the capital stock of the Company except for the issuance of shares of the Company Common Stock pursuant to Company Stock Options, in the ordinary course of business consistent with past practicepractices; (iv) there has been no dividend or distribution of any kind declared, and paid or made by the Company on any class of its stock, (v) there has not occurred any: been (aA) event or change that has had or would reasonably be expected to have, individually or in the aggregate, any adoption of a new Company Material Adverse Effect, Plan (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effecthereinafter defined), (hB) grant by the any amendment to a Company or any of its subsidiaries to any officer of any increase in compensationPlan increasing benefits thereunder, except as was required under any employment agreements set forth on Section 2.6(h(C) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries Subsidiaries to any employee executive officer of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paycompensation, except in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements in effect as of the date of the Company Balance Sheet Date, (jD) any granting by the Company or any of its Subsidiaries to any such executive officer of any increase in severance or termination agreements in effect as of the Company Balance Sheet Date, or (E) any entry by the Company or any of its subsidiaries Subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any such executive officer, (kvi) establishmentthere has not been any change in the amount or terms of the indebtedness of the Company or any of its Subsidiaries from the Balance Sheet Date, adoptionand (vii) other than amendment of the Company Rights Plan pursuant to Sections 3.30 and 5.9 hereof, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in term of any outstanding security of the Stock PlanCompany or any Subsidiary.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Endocardial Solutions Inc), Agreement and Plan of Merger (Endocardial Solutions Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) or as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionscontemplated by this Agreement, since the Balance Sheet DateJuly 31, 1999 the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practicecourse, and there has not occurred any: been (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company any Material Adverse Effect, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of to, or repurchase or redemption of, the Company's capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary repurchases of the Company to its parent), or any repurchase, redemption or other acquisition Common Stock by the Company or any of its subsidiaries of any capital stock of pursuant to the Company's stock repurchase program or to fund the Company's Deferred Compensation Incentive Plan or the Company's 401(k) Plan, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (eiv) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusiness, except insofar as may have been required by a change in GAAP generally accepted accounting principles (v) any salary or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of compensation increases to any material Tax liability, (g) damage, destruction or loss of any material asset employee of the Company or of any of its the Company's subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practicepractices, (jvi) entry any increase in indebtedness for borrowed money incurred by the Company, or any of its subsidiaries, nor any incurrence of any other obligation or liability (fixed or contingent) except in the ordinary course of business and consistent with past practices, (vii) any transaction with respect to a merger, consolidation, liquidation or reorganization of the Company or any subsidiary of the Company other than such proceedings relating to this Agreement, or (viii) any agreement by the Company or any subsidiary of its subsidiaries into the Company to take any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for the actions described in the Stock Planforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hovnanian Enterprises Inc), Agreement and Plan of Merger (Hovnanian Enterprises Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the LIN SEC Documents filed and publicly available not later than two days prior Document or the LIN Disclosure Letter, or as otherwise agreed to in writing after the date hereof by Chancellor, or as expressly permitted by this Agreement, since the date of the most recent audited financial statements of LIN Holdings contained in the LIN SEC Document, LIN and its subsidiaries have conducted their business only in the ordinary course, and there has not been (i) any change which could reasonably be expected to have a LIN Material Adverse Effect (including as a result of the "Filed SEC Documents"consummation of the transactions contemplated by this Agreement), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of LIN's outstanding capital stock, (iii) any split, combination or reclassification of any of its outstanding capital stock or any issuance or the authorization of the Company any issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, (iv) (x) any granting by LIN or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)any director, or any repurchase, redemption officer or other acquisition by the Company employee or independent contractor of LIN or any of its subsidiaries of any capital stock increase in compensation or acceleration of benefits, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Companydate of the most recent audited financial statements of LIN Holdings contained in the LIN SEC Document, (dy) splitany granting by LIN or any of its subsidiaries to any director, combination officer or reclassification other employee or independent contractor of any capital stock increase in, or acceleration of benefits in respect of, severance or termination pay, or pay in connection with any change of control of LIN, except in the ordinary course of business consistent with prior practice or as was required under any employment, severance or termination agreements in effect as of the Companydate of the most recent audited financial statements of LIN Holdings contained in the LIN SEC Document, or (ez) any entry by LIN or any of its subsidiaries into any employment, severance, change of control, or termination or similar agreement with any director, executive officer or other employee or independent contractor other than in the ordinary course of business consistent with past practices, or (v) any change in financial or tax accounting methods, principles or practices by the Company LIN or any of its subsidiariessubsidiaries materially affecting its assets, liability or business, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plangenerally accepted accounting principles.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (WTNH Broadcasting Inc), Agreement and Plan of Merger (Chancellor Media Corp of Los Angeles)
Absence of Certain Changes or Events. Except as set forth in Schedule 2.9 hereto and except as contemplated by this Agreement, since December 31, 2013 until the date hereof, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed Company and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")its Subsidiaries, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company’s stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company’s capital stock, (eiv) change in financial or tax accounting methods, principles or practices any granting by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in compensationcompensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice or pursuant to any Plans (as was required under any employment agreements set forth on defined in Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser2.11(a)), or any granting by the Company or any of its subsidiaries to any employee Subsidiaries of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, pay or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries Subsidiaries into any currently effective employment, severance, termination or indemnification agreement, (v) any material change by the Company or amendment any of its Subsidiaries in its accounting methods, principles or practices, (vi) any issuance of capital stock of the Company, (vii) any revaluation by the Company of any existing) employmentof its assets, severance including, without limitation, writing down the value of capitalized inventory or termination agreement with writing off notes or accounts receivable or any officersale of assets of the Company other than in the ordinary course of business, (kviii) establishment, adoption, amendment or modification of, or increase any incurrence of benefits under, any plan that would constitute a debt by the Company Plan (as hereinafter defined) other than debt in the ordinary course of business or (lix) acceleration any agreement, whether written or oral, to do any of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Quartet Merger Corp.), Agreement and Plan of Reorganization (Pangaea Logistics Solutions Ltd.)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 2.9 of the Company Disclosure Schedule, or (iii) for the TransactionsLetter, since the Balance Sheet DateSeptember 30, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice2000, and there has not occurred anybeen: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company any Material Adverse EffectEffect on Company, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by Company of any of Company's capital stock or any other securities of Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of Company's or any of its subsidiaries' capital stock, (iv) any granting by Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, compensation or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationfringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paybonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) or any granting by Company or any of its subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Company of the nature contemplated hereby, (v) entry by Company or amendment any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any existingIntellectual Property (as defined in Section 2.19) employment, severance other than licenses in the ordinary course of business consistent with past practice or termination any amendment or consent with respect to any licensing agreement which has been filed or is required to be filed by Company with any officerthe SEC, (kvi) establishmentany material change by Company in its accounting methods, adoptionprinciples or practices, amendment or modification ofexcept as required by concurrent changes in GAAP, or increase (vii) any revaluation by Company of benefits underany of its assets, any plan that would constitute a Company Plan (as hereinafter defined) including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable, or (lviii) acceleration any sale of vesting assets of any Option, except acceleration previously provided for the Company other than in the Stock Planordinary course of business consistent with past practice.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Accord Networks LTD), Agreement and Plan of Merger and Reorganization (Polycom Inc)
Absence of Certain Changes or Events. Except (ia) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure ScheduleBalance Sheet, or (iii) for the Transactions, since the Balance Sheet Date, business of the Company and its subsidiaries have carried on and operated their respective businesses in all material respects has been conducted in the ordinary course of business consistent with past practice, practices (other than the transactions contemplated by this Agreement and the Transaction Option Agreement) and there is not and has not occurred any: been (ai) event any event, occurrence, development or change state of circumstances or facts that has had or would could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Effect on the Company or give rise to a Material Adverse Change (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of 9.3(c)) on the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practiceCompany, (cii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases which are not, individually or in the aggregate, material in amount from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (diii) split, combination or reclassification of any capital stock of material change by the Company, (e) change Company in financial or tax its accounting methods, principles or practices practices, except as required by concurrent changes in GAAP, (iv) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damageassets, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than in the ordinary course of business consistent with past practicebusiness, or (iv) grant by any condition, event or occurrence which, individually or in the Company aggregate, could reasonably be expected to prevent or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) materially delay the ability of the Company Disclosure Schedule, copies of which have been made available to Purchaser, consummate the transactions contemplated by this Agreement and the Transaction Option Agreement or any grant by the Company perform its obligations hereunder or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planthereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp)
Absence of Certain Changes or Events. Except (i) Since December 31, -------------------------------------------------- 1997, except as contemplated by this Agreement or as disclosed in the SEC Documents filed and publicly available not later than two days prior Schedule 3.8 to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet DateLetter, the Company and its subsidiaries have carried on conducted their businesses only in the ordinary course and operated their respective businesses in all a manner consistent with past practice and, since such date, there has not been: (i) any changes in the assets, liabilities, results of operation, financial condition or business of the Company or any of its subsidiaries having or likely to have a Material Adverse Effect; (ii) any condition, event or occurrence which, individually or in the aggregate, is likely to have a Material Adverse Effect; (iii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of the Company or any of its subsidiaries which is likely, individually or in the aggregate, to have a Material Adverse Effect; (iv) any change by the Company in its accounting methods, principles or practices; (v) any revaluation by the Company of any of its material respects assets, including but not limited to writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (vi) any entry by the Company or any of its subsidiaries into any commitment or transactions material to the Company and its subsidiaries taken as a whole (other than commitments or transactions entered into in the ordinary course of business); (vii) any declaration, setting aside or payment of any dividends or distributions in respect of the Shares; (viii) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including without limitation the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any present or former directors, officers or key employees of the Company or any of its subsidiaries, except for increases in base compensation in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, consulting or severance agreement or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries arrangement entered into any (or amendment of any existing) employment, severance or termination agreement with any officersuch present or former directors, (k) establishment, adoption, amendment officers or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) key employees; or (lix) acceleration any other action which, if it had been taken after the date hereof, would have required the consent of vesting of any Option, except acceleration previously provided for in the Stock PlanParent under Section 5.1.
Appears in 2 contracts
Samples: Agreement and Plan (Steel of West Virginia Inc), Agreement and Plan of Merger (Swva Acquisition Inc)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet there has not been: (i) any Material Adverse Effect (as disclosed defined in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"Section 8.3(c)) on Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by Company of any of Company's capital stock or any other securities of Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of Company's or any of its subsidiaries' capital stock, (iv) any granting by Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, compensation or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationfringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paybonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) or any granting by Company or any of its subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Company of the nature contemplated hereby, (v) entry by Company or amendment any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any existingmaterial Intellectual Property (as defined in Section 2.9) employment, severance other than licenses in the ordinary course of business consistent with past practice or termination any amendment or consent with respect to any licensing agreement filed or required to be filed by Company with any officerthe SEC, (kvi) establishmentany material change by Company in its accounting methods, adoptionprinciples or practices, amendment or modification ofexcept as required by concurrent changes in GAAP, or increase of benefits under, (vii) any plan that would constitute a revaluation by Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Optionof its assets, except acceleration previously provided for including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the Stock Planordinary course of business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Quantum Corp /De/), Agreement and Plan of Reorganization (Atl Products Inc)
Absence of Certain Changes or Events. Except (i) Since the date of the TEAM Balance Sheet, other than as disclosed set forth in TEAM SEC Reports filed after the SEC Documents filed date of the TEAM Balance Sheet and publicly available not later than two days prior to the date hereof hereof, there has not been (the "Filed SEC Documents")i) any Material Adverse Effect with respect to TEAM, (ii) as set forth in Section 2.6 any declaration, setting aside or payment of the Company Disclosure Scheduleany dividend on, or other distribution (iiiwhether in cash, stock or property) for the Transactionsin respect of, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course any of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company TEAM’s or any of its subsidiaries’ capital stock, or any purchase, redemption or other acquisition by TEAM or any of its subsidiaries of any of TEAM’s or its subsidiaries’ capital stock or any other securities of TEAM or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except sales for repurchases from employees following their termination pursuant to the terms of inventory their preexisting stock option or purchase agreements, (iii) any split, combination or reclassification of any of TEAM’s or any of its subsidiaries’ capital stock, (iv) any granting by TEAM or any of its subsidiaries of any increase in compensation or fringe benefits or payment, or any bonus to any of their directors or employees, in any case, in excess of 10 percent of any such amount prior to such increase, (v) any making of any loan or providing any advance to their directors or employees, or any granting by TEAM or any of its subsidiaries of any increase in severance or termination pay or any entry by TEAM or any of its subsidiaries into, or material modification or amendment of, any currently effective employment, severance, termination or indemnification Contract or any Contract the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving TEAM of the nature contemplated hereby, (vi) any material change or alteration in the policy of TEAM or its subsidiaries relating to the granting of stock options or other equity compensation to their directors, employees and consultants, (vii) entry by TEAM or any of its subsidiaries into, or material modification, amendment or cancellation of, any licensing or other agreement with regard to the use, acquisition or licensing of any material Intellectual Property other than licenses, assignment agreements, or other similar Contracts entered into in the ordinary course of business consistent with past practice, (cviii) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company entry by TEAM or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)into, or material modification, amendment or cancellation of, any repurchasematerial Contract, redemption (ix) any material change by TEAM in its accounting methods, principles or other acquisition practices, except as required by the Company concurrent changes in GAAP, (x) any material revaluation by TEAM or any of its subsidiaries of any capital stock of the Company, (d) split, combination their material assets including writing off notes or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases accounts receivable other than in the ordinary course of business consistent with past practicebusiness, or (ixi) grant by any material changes in the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) ability of the Company Disclosure Schedule, copies officers of which have been made available TEAM to Purchaser, or any grant by make the Company or any certifications required pursuant to Sections 302 and 906 of its subsidiaries to any employee other than an officer the Xxxxxxxx-Xxxxx Act of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan2002.
Appears in 2 contracts
Samples: Merger Agreement (Vsource Inc), Merger Agreement (Team America Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of on the Company Disclosure Schedule, or (iii) for the Transactions, since the Company Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred anybeen: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company any Material Adverse EffectEffect on Company, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by Company of any of Company's capital stock or any other securities of Company or its subsidiaries or issuances of any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of Company's or any of its subsidiaries' capital stock, (iv) any granting by Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, compensation or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationfringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paymaterial bonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) or any granting by Company or any of its subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Company of the nature contemplated hereby, (v) entry by Company or amendment any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any existingmaterial Intellectual Property (as defined in Section 2.18) employment, severance other than licenses in the ordinary course of business consistent with past practice or termination any amendment or consent with respect to any licensing agreement filed or required to be filed by Company with any officerthe SEC, (kvi) establishmentany material change by Company in its accounting methods, adoptionprinciples or practices, amendment or modification ofexcept as required by concurrent changes in GAAP, or increase of benefits under, (vii) any plan that would constitute a revaluation by Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Optionof its assets, except acceleration previously provided for including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the Stock Planordinary course of business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sanmina Corp/De), Agreement and Plan of Reorganization (Sci Systems Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 3.07 of the Company Disclosure Schedule, or (iii) for the Transactionssince December 31, since the Balance Sheet Date2006, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with their past practice, (ca) there has not been any Material Adverse Change, and (b) from such date until the date hereof there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)stockholders, or (ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, including pursuant to the Company’s share repurchase program, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or independent contractor, of the Company or any of its Subsidiaries (all such individuals, collectively, the “Company Personnel”) of any increase in compensation, bonus or fringe or other benefits, except in the ordinary course of business consistent with past practice or as was required under any Company Benefit Agreement or Company Benefit Plan, (B) any granting by the Company or any of its Subsidiaries to any Company Personnel of (1) any increase in severance or termination pay or (2) any right to receive any severance or termination pay, (C) any entry by the Company or any of its Subsidiaries into, or any amendments of, (1) any Company Benefit Agreement or (2) any Contract with any Company Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement, (D) the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date hereof, or (E) the adoption, amendment or termination of any Company Benefit Plan or entry into any agreement, plan or arrangement to do any of the foregoing, (v) any material damage, destruction or loss, whether or not covered by insurance, (vi) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable LawGAAP, (fvii) any material Tax election inconsistent with past practices or the any settlement or compromise of any material income Tax liability, liability or (gviii) damage, destruction any sales of real estate or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaserrestaurants, or any granting by the Company or any of its subsidiaries Contract with respect to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plansuch sale.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Darden Restaurants Inc), Agreement and Plan of Merger (Rare Hospitality International Inc)
Absence of Certain Changes or Events. Except (i) for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents filed and publicly available not later than two days prior or as expressly permitted pursuant to the date hereof Section 4.01(a)(i) through (the "Filed SEC Documents"xv), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datedate of the most recent audited financial statements included in the Filed Company SEC Documents, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a been any Company Material Adverse EffectChange, and from such date until the date hereof there has not been (bi) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries Subsidiaries, (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any current or former director, officer, employee or consultant not previously receiving or entitled to receive such type of compensation or benefit, except as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (B) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries of any right to receive any increase in change of control, severance or termination compensation or benefits, or (C) any entry by the Company or any of its Subsidiaries into or any amendments of (1) any employment, deferred compensation, consulting, severance, change of control, termination or indemnification agreement or any other agreement, plan or policy with or involving any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries or (2) any agreement with any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Company Benefit Agreements”), (D) any adoption of, any amendment to or any termination of any collective bargaining agreement or any Company Benefit Plan, (E) any payment of any benefit or grant of any award under Company Benefit Agreement or Company Benefit Plan (including in respect of stock options, “phantom” stock, stock appreciation rights, restricted stock, “phantom” stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable Legal Provisions or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (F) any action to accelerate the vesting or time of payment of any compensation or benefit under any Company Benefit Plan or Company Benefit Agreement or (G) any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, (v) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate has had or could reasonably be expected to have a Company Material Adverse Effect, (vi) any change in financial or tax accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable Law, (fvii) any material Tax tax election inconsistent with past practices or the any settlement or compromise of any material Tax income tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Benchmark Electronics Inc), Agreement and Plan of Merger (Pemstar Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since Since the Balance Sheet Date, (a) there has not been any Company Material Adverse Effect and (b) except for actions expressly contemplated by this Agreement or publicly disclosed by Company in Company SEC Documents filed or furnished prior to the date hereof, (i) the business of each of Company and its subsidiaries have carried on and operated their respective businesses Subsidiaries has been conducted in all material respects in the ordinary course of business consistent with past practice, practice and (ii) there has not occurred any: been (aA) event other than cash dividends made by any wholly owned Subsidiary of Company to Company or change that has had one of its Subsidiaries, any split, combination or would reasonably be expected to havereclassification of any shares of capital stock, individually declaration, setting aside or in the aggregate, a Company Material Adverse Effect, (b) sale paying of any dividend or other disposition of distribution (whether in cash, shares or pledge or other encumbrance upon a material amount of property or other assets any combination thereof) in respect of any shares of capital stock of Company or any Real Property Lease as defined Subsidiary; (B) any change in Section 2.14 herein any method of the accounting or accounting principles or practice by Company or any of its subsidiariesSubsidiaries, except sales for any such change required by reason of inventory a change in GAAP or regulatory accounting principles; (C) any amendment of Company Charter Documents; (D) any acquisition, redemption or amendment of any Company Securities or Subsidiary Securities; (E) (1) any incurrence or assumption of any long-term or short-term debt or issuance of any debt securities by Company or any of its Subsidiaries except for short-term debt incurred to fund operations of the business or owed to Company or any of its wholly-owned Subsidiaries, in each case, in the ordinary course of business consistent with past practice, (c2) declarationany assumption, setting aside guarantee or payment endorsement of the obligations of any dividend other Person (except direct or other distribution (whether in cash, stock or propertyindirect wholly-owned Subsidiaries of Company) with respect to any class of capital stock of the by Company or any of its subsidiaries Subsidiaries, (other than dividends by a direct 3) any loan, advance or indirect wholly owned subsidiary of the Company to its parent)capital contribution to, or other investment in, any repurchase, redemption or other acquisition Person by the Company or any of its subsidiaries of any capital stock of the CompanySubsidiaries (other than customary loans or advances to employees or direct or indirect wholly-owned Subsidiaries, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases each case in the ordinary course of business consistent with past practice) or (4) any mortgage or pledge of Company’s or any of its Subsidiaries’ assets, tangible or intangible, or any creation of any Lien thereupon (iother than Permitted Encumbrances); (F) grant by the any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries to Subsidiaries (other than the Merger); (G) any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant material revaluation by the Company or any of its subsidiaries to Subsidiaries of any employee of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable, other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice; or (H) any communication between Nasdaq and Company with respect to the actual or potential de-listing of the Company Common Stock. For purposes of this Agreement, the term “Permitted Encumbrances” shall mean (a) Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings, (jb) entry Liens imposed by Law, such as landlord’s, mechanics’, laborers’, carriers’, materialmen’s, suppliers’ and vendors’ Liens arising in the Company ordinary course of business for sums not yet due and payable, or that are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, (c) Liens securing the performance of bids, tenders, leases, contracts (other than for the payment of debt), statutory obligations, surety, customs and appeal bonds and other obligations of like nature, incurred as an incident to and in the ordinary course of business, and (d) such other imperfections of title, charges, easements, restrictions and encumbrances as do not materially detract from the value of or otherwise materially interfere with the present use of any of Company’s or its subsidiaries into any (Subsidiaries’ properties or amendment of any existing) employment, severance otherwise materially impair Company’s or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planits Subsidiaries’ business operations.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Sciences Corp)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet, there has not been: (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior any Material Adverse Effect with respect to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or its subsidiaries or any grant or issuance of any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or service providers following their termination of service pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company's or any of its subsidiaries' capital stock, (iv) other than in the ordinary course of business consistent with past practice, any granting by the Company or any of its subsidiaries of any capital stock increase in compensation or fringe benefits to any of the Companytheir officers or employees, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased payment by the Company or any of its subsidiaries pursuant of any bonus to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchasertheir officers or employees, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant severance or termination pay or any entry by the Company or any of its subsidiaries to into, or material modification or amendment of, any officer currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby or any acceleration or release of any increase vesting condition to the right to exercise any option, warrant or other right to purchase or otherwise acquire any shares of the Company's capital stock or any acceleration or release of any right to repurchase shares of the Company's capital stock upon the termination of employment or services with the Company, (v) any material change or alteration in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) the policy of the Company Disclosure Schedule, copies relating to the granting of which have been made available stock options or other equity compensation to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practiceemployees and consultants, (jvi) entry by the Company or any of its subsidiaries into any (into, or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoptionmaterial modification, amendment or modification cancellation of, any development services, licensing, distribution, sales, services or increase of benefits under, other similar agreement with respect to any plan that would constitute a material Company Plan Intellectual Property Rights (as hereinafter defineddefined in Section 2.9) other than in the ordinary course of business consistent with past practices, (vii) any acquisition, sale or transfer of any material asset by the Company or any of its subsidiaries other than in the ordinary course of business consistent with past practices, (viii) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (lix) acceleration of vesting any material revaluation by the Company of any Optionof its material assets, except acceleration previously provided for including writing off notes or accounts receivable other than in the Stock Planordinary course of business consistent with past practices.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Inverness Medical Innovations Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since October 3, 2009 until the date hereof (the "Filed SEC Documents")of this Agreement, (ii) except as otherwise required by this Agreement and as set forth in Section 2.6 3.9 of the Company Disclosure ScheduleLetter, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not been, occurred anyor arisen: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, ; (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiariesmaking, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)Company’s capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any the Company’s capital stock or any other securities of the Company or any Subsidiary of the Company, except for (di) the making, declaration, setting aside or payment of cash dividends by any wholly owned Subsidiary of the Company to its parent, or (ii) the acquisition of shares of Common Stock by the Company in satisfaction by holders of any options or rights granted under the Company Stock Plans or the applicable exercise price or withholding taxes; (c) any split, combination or reclassification of any capital stock of the Company, (e) change in financial ’s or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset Subsidiary of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits Company’s capital stock; (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (hd) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any Subsidiary of its subsidiaries the Company of any material increase in compensation or fringe benefits to any employee of any increase in compensation, or director (except for normal increases in the ordinary course of business consistent with past practice), (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) Subsidiary of the Company Disclosure Schedule, copies of which have been any material bonus (except for bonuses made available to Purchaserin the ordinary course of business consistent with past practice), or any grant entry by the Company or any Subsidiary of its subsidiaries to the Company into any employee other than an officer of any increase in contract (or amendment of an existing contract) to grant or provide severance, acceleration of vesting vesting, termination pay or payment of) severance or termination payother similar benefits, except in the ordinary course of business consistent with past practice; (e) any change by the Company in its accounting methods, principles or practices (jincluding any change in depreciation or amortization policies or rates or revenue recognition policies), except as required by concurrent changes in GAAP or by the SEC; (f) entry any revaluation by the Company or any Subsidiary of the Company of any of their respective assets, including writing off notes or accounts receivable or any sale of assets of the Company or any Subsidiary of the Company other than in the ordinary course of business consistent with past practice or less than $100,000; (g) any material change by the Company or any Subsidiary of the Company in its Tax elections or Tax accounting methods, or any closing agreement, settlement or compromise of any material claim or assessment, in each case in respect of Taxes, or consent to any extension or waiver of any statute of limitation period with respect to any material claim or assessment for Taxes; (h) any notice from NYSE AMEX with respect to any potential delisting of shares of Common Stock; (i) any sale, transfer or other disposition outside of the ordinary course of business of any material property or material assets (whether real, personal or mixed, tangible or intangible) by the Company or any of its subsidiaries into Subsidiaries; and (j) any commitment or agreement described in the preceding clauses (a) through (i). Since the date of the Latest Balance Sheet, except as contemplated by this Agreement, the Company and each of its Subsidiaries have conducted its respective business in the ordinary course of business as consistent with past practices. As used in this Agreement, the term “Encumbrance” means, with respect to any asset of the Company or amendment any Subsidiary of the Company, any mortgage, deed of trust, lien, pledge, charge, security interest, or other security arrangement, collateral assignment, charge, adverse claim of title, ownership or right to use, restriction or other encumbrance of any existingkind in respect of such asset (including any restriction on (a) employment, severance the voting of any security or termination agreement with the transfer of any officersecurity or other asset, (kb) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting the receipt of any Optionincome derived from any asset, (c) the use of any asset and (d) the possession, exercise or transfer of any other attribute of ownership of any asset), in each case except acceleration previously provided for in such restrictions of general application under the Stock PlanSecurities Act and applicable “blue sky” Laws. The terms “encumber” and “encumbering” (whether or not capitalized) have meanings correlative to the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Merrimac Industries Inc)
Absence of Certain Changes or Events. Except Since September 30, 2018, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth any declaration, setting aside or payment of any dividend on, or other distribution (whether in Section 2.6 cash, stock or property) in respect of, any of the Company’s or any of its subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company’s capital stock or any other securities of the Company Disclosure Scheduleor its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, except as has been contemplated by and agreed to by the parties, (iii) for any split, combination or reclassification of any of the TransactionsCompany’s or any of its subsidiaries’ capital stock, since the Balance Sheet Date, (iv) any granting by the Company and or any of its subsidiaries have carried on and operated their respective businesses of any increase in all material respects compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariessubsidiaries of any bonus, except sales for bonuses made in the ordinary course of inventory business consistent with past practice, or any granting by the Company or any of its subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) entry by the Company or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18(a)(i) hereof) other than licenses in the ordinary course of business consistent with past practice, (cvi) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition material change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as allowed or required by concurrent changes in GAAP, (vii) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects assets, including, without limitation, writing down the use value of capitalized inventory or value thereof writing off notes or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases accounts receivable other than in the ordinary course of business consistent with past practicebusiness, or (iviii) grant except as has been contemplated by and agreed to by the Company or parties, any sale of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) assets of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planbusiness.
Appears in 1 contract
Absence of Certain Changes or Events. Except as set forth in Schedule 2.9 hereto, since June 30, 2014, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed Company and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")its Subsidiaries, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company’s stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company’s capital stock, (eiv) change in financial or tax accounting methods, principles or practices any granting by the Company or its subsidiariesSubsidiaries of any increase in compensation or fringe benefits, except insofar as may have been required by a change for normal increases of cash compensation in GAAP or applicable Law, (f) material Tax election inconsistent the ordinary course of business consistent with past practices or the settlement or compromise of any material Tax liabilitypractice, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased payment by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in compensationbonus, except as was required under any employment agreements set forth on Section 2.6(h) for bonuses made in the ordinary course of the Company Disclosure Schedule, copies of which have been made available to Purchaserbusiness consistent with past practice, or any granting by the Company or any of its subsidiaries to any employee Subsidiaries of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, pay or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) any material change by the Company or amendment any of its Subsidiaries in its accounting methods, principles or practices, (vi) any change in the auditors of the Company, (vii) any issuance of capital stock of the Company, (viii) any revaluation by the Company of any existing) employmentof its assets, severance including, without limitation, writing down the value of capitalized inventory or termination agreement with writing off notes or accounts receivable or any officersale of assets of the Company other than in the ordinary course of business, (kix) establishment, adoption, amendment or modification of, or increase any incurrence of benefits under, any plan that would constitute a debt by the Company Plan (as hereinafter defined) other than trade debt in the ordinary course of business or (lx) acceleration any agreement, whether written or oral, to do any of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Garnero Group Acquisition Co)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since Since the Balance Sheet Date, (a) there has not been any Company Material Adverse Effect and (b) except for actions expressly contemplated by this Agreement or publicly disclosed by Company in Company SEC Documents filed or furnished prior to the date hereof, (i) the business of each of Company and its subsidiaries have carried on and operated their respective businesses Subsidiaries has been conducted in all material respects in the ordinary course of business consistent with past practice, practice and (ii) there has not occurred any: been (aA) event other than cash dividends made by any wholly owned Subsidiary of Company to Company or change that has had one of its Subsidiaries, any split, combination or would reasonably be expected to havereclassification of any shares of capital stock, individually declaration, setting aside or in the aggregate, a Company Material Adverse Effect, (b) sale paying of any dividend or other disposition of distribution (whether in cash, shares or pledge or other encumbrance upon a material amount of property or other assets any combination thereof) in respect of any shares of capital stock of Company or any Real Property Lease as defined Subsidiary; (B) any change in Section 2.14 herein any method of the accounting or accounting principles or practice by Company or any of its subsidiariesSubsidiaries, except sales for any such change required by reason of inventory a change in GAAP or regulatory accounting principles; (C) any amendment of Company Charter Documents; (D) any acquisition, redemption or amendment of any Company Securities or Subsidiary Securities; (E) (1) any incurrence or assumption of any long-term or short-term debt or issuance of any debt securities by Company or any of its Subsidiaries except for short-term debt incurred to fund operations of the business or owed to Company or any of its wholly-owned Subsidiaries, in each case, in the ordinary course of business consistent with past practice, (c2) declarationany assumption, setting aside guarantee or payment endorsement of the obligations of any dividend other Person (except direct or other distribution (whether in cash, stock or propertyindirect wholly-owned Subsidiaries of Company) with respect to any class of capital stock of the by Company or any of its subsidiaries Subsidiaries, (other than dividends by a direct 3) any loan, advance or indirect wholly owned subsidiary of the Company to its parent)capital contribution to, or other investment in, any repurchase, redemption or other acquisition Person by the Company or any of its subsidiaries of any capital stock of the CompanySubsidiaries (other than customary loans or advances to employees or direct or indirect wholly-owned Subsidiaries, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases each case in the ordinary course of business consistent with past practice) or (4) any mortgage or pledge of Company's or any of its Subsidiaries' assets, tangible or intangible, or any creation of any Lien thereupon (iother than Permitted Encumbrances); (F) grant by the any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries to Subsidiaries (other than the Merger); (G) any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant material revaluation by the Company or any of its subsidiaries to Subsidiaries of any employee of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable, other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice; or (H) any communication between Nasdaq and Company with respect to the actual or potential de-listing of the Company Common Stock. For purposes of this Agreement, the term "PERMITTED ENCUMBRANCES" shall mean (a) Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings, (jb) entry Liens imposed by Law, such as landlord's, mechanics', laborers', carriers', materialmen's, suppliers' and vendors' Liens arising in the Company ordinary course of business for sums not yet due and payable, or that are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, (c) Liens securing the performance of bids, tenders, leases, contracts (other than for the payment of debt), statutory obligations, surety, customs and appeal bonds and other obligations of like nature, incurred as an incident to and in the ordinary course of business, and (d) such other imperfections of title, charges, easements, restrictions and encumbrances as do not materially detract from the value of or otherwise materially interfere with the present use of any of Company's or its subsidiaries into any (Subsidiaries' properties or amendment of any existing) employment, severance otherwise materially impair Company's or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planits Subsidiaries' business operations.
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as for liabilities incurred in connection with the Transactions and except for changes disclosed in the Company SEC Documents filed and publicly available not later than two days prior to the date hereof of this Agreement (as amended to the date of this Agreement, the "Filed COMPANY FILED SEC DocumentsDOCUMENTS"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedulesince October 31, or (iii) for the Transactions, since the Balance Sheet Date2002, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects business only in the ordinary course of business consistent with past practicecourse, and since such date there has not occurred any: been (a) event or change that has had or would reasonably be expected to have, individually or any Material Adverse Change in the aggregate, a Company Material Adverse EffectCompany, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of the Company's capital stock, (c) any purchase, redemption or other acquisition of any shares of capital stock or any other securities of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), Subsidiaries or any repurchaseoptions, redemption warrants, calls or rights to acquire such shares or other acquisition by the Company or any of its subsidiaries of any capital stock of the Companysecurities, (d) any split, combination or reclassification of any capital stock of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fi) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries Subsidiaries to any current or former director, executive officer or other key employee of the Company or its Subsidiaries of any increase in compensation, bonus, royalties, commissions or other benefits, except for normal increases in cash compensation, bonus or other benefits in the ordinary course of business consistent with past practice, (iii) grant any granting by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or key employee of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under (iii) any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant entry by the Company or any of its subsidiaries Subsidiaries into, or any material amendments of, any Company Benefit Agreement, (iv) any material amendment to, or modification of, any Company Stock Option or (v) any adoption of, or material amendment to, a Company Benefit Plan, (f) except insofar as may have been required by a change in GAAP, any change in accounting methods, principles or practices by the Company or any of its Subsidiaries materially affecting their respective assets, liabilities, results of operations or businesses, (g) any Tax election that, individually or in the aggregate, would reasonably be expected to adversely affect in any employee material respect the Tax liability or Tax attributes of the Company or any of its Subsidiaries, (h) any settlement or compromise of any material income tax liability, (i) any revaluation by the Company or any of its Subsidiaries of any of the material assets of the Company or any of its Subsidiaries, (j) the entering into, modification, termination, nonrenewal or assignment of any rights or delegation of any obligations under any Material Contract or any other agreement with regard to the acquisition, licensing in or disposition or licensing out of any material Intellectual Property Rights or rights thereto, other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice or not in the ordinary course of business and not consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishmentany lapse, adoptionreversion, amendment termination or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting expiration of any OptionIntellectual Property Rights, except acceleration previously provided for where such lapse, reversion, termination or expiration, individually and in the Stock Planaggregate, would not reasonably be expected to have a Material Adverse Effect on the Company.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Except (i) as disclosed in for incurring the SEC Documents filed and publicly available not later than two days prior to expenses, making the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedulepayments, or (iii) for the Transactionsother transactions contemplated in or by this Agreement, since the Reference Balance Sheet Date, and except as set forth on Section 4.10(a) of the Disclosure Letter, (i) the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all the ordinary course consistent with past practice and have not incurred any material respects Liability, except in the ordinary course of its business consistent with past practice, and ; (ii) there has not occurred any: (a) event been any change in the business, financial condition, Liabilities, assets, technology, Intellectual Property Rights, employee relations, customer relations, supplier relations, manufacturer relations or change distributor relations, or results of operations of the Company or any of its Subsidiaries that has had had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect on the Company, (biii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or there has not been any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class shares of capital the Company; (iv) there has not been any split, combination or reclassification of any common stock of the Company or any of its subsidiaries (Subsidiaries or any issuance or commitment to issue or the authorization of any issuance of any capital stock or other than dividends by a direct or indirect wholly owned subsidiary Equity Interests of the Company to its parent), or any repurchase, redemption of its Subsidiaries or other acquisition securities convertible into, in exchange or in substitution for any shares of capital stock or other Equity Interests of the Company or any of its Subsidiaries; (v) there has not been (A) any granting by the Company to any employee of any increase in compensation, other than in the ordinary course of business consistent with past practice, (B) any granting by the Company or any of its subsidiaries Subsidiaries to any employee of any capital stock increase in severance benefit, termination pay, change of control benefit or any similar right, benefit or pay or (C) any entry by the CompanyCompany or any of its Subsidiaries into any employment, severance or termination agreement, policy or arrangement with any employee; and (dvi) split, combination or reclassification of there has not been any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiariesSubsidiaries affecting their assets, Liabilities or business, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanGAAP.
Appears in 1 contract
Samples: Stock Purchase Agreement (Complete Production Services, Inc.)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 3.7 of the Company Disclosure Schedule, or (iii) for from the Transactions, since the Company Balance Sheet DateDate until the date hereof, (i) the Company and its subsidiaries Subsidiaries have carried on and operated their respective businesses not incurred any liability or obligation (indirect, direct or contingent), or entered into any material oral or written agreement or other transaction, in all material respects excess of one hundred thousand dollars ($100,000), that is not in the ordinary course of business consistent with past practicepractices, (ii) the Company and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance), (iii) there has not occurred any: (a) event or been no change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein capital stock of the Company and no dividend or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment distribution of any dividend kind has been declared, paid or other distribution (whether made in cash, stock or property) with respect to of any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), Subsidiaries or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any outstanding shares of capital stock of the Companyor other securities of, (d) splitor other ownership interests in, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use Subsidiaries, (iv) there has been no creation or value thereof or a material part of any improvement Leased assumption by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits Subsidiaries of any material Lien (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether as hereinafter defined) on any damage, destruction or loss is material or would result in a Company Material Adverse Effect)asset, (hv) grant there has been no transaction or commitment made, or any contract or agreement entered into, by the Company or any of its subsidiaries Subsidiaries outside of the ordinary course of business relating to any officer its assets or business (including the acquisition or disposition of any increase assets) or any relinquishment by the Company or any of its Subsidiaries of any contract, agreement or other right, in compensationeither case, except as was required under any employment agreements set forth on Section 2.6(h) material to the Company and its Subsidiaries outside of the ordinary course of business, taken as a whole, (vi) there has been no change by the Company Disclosure Scheduleor any of its Subsidiaries in any of its accounting principles, copies practices or methods, (viii) there has not been (A) any adoption of which have been made available a new Company Plan (as hereinafter defined), (B) any amendment to Purchasera Company Plan increasing benefits thereunder, or (C) any granting by the Company or any of its subsidiaries Subsidiaries to any executive officer or other key employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paycompensation, except in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements in effect as of the Company Balance Sheet Date, (jD) any granting by the Company or any of its Subsidiaries to any such executive officer or other key employee of any increase in severance or termination agreements in effect as of the Company Balance Sheet Date, other than routine increases consistent with past practices, (E) any payment of bonuses or other incentive compensation by the Company or any of its Subsidiaries to any employees, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Company Balance Sheet Date or (F) any entry by the Company or any of its subsidiaries Subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officersuch executive officer or other key employee, (kix) establishment, adoption, amendment or modification of, or increase of benefits under, there has not been any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for material change in the Stock Planamount or terms of the indebtedness of the Company or any of its Subsidiaries from the Company Balance Sheet Date, (x) there has been no event causing a Material Adverse Effect on the Company, and (xi) there has been no amendment to the Certificate of Incorporation or Bylaws of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (California Amplifier Inc)
Absence of Certain Changes or Events. Except (i) as disclosed Since April 1, 2007 there has not been any Material Adverse Effect or any state of facts, change, development, event, effect, condition, occurrence, action or omission that, individually or in the SEC Documents filed and publicly available not later than two days prior to aggregate, has had a Material Adverse Effect. Since April 1, 2007 through the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datehereof, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses only in all material respects the ordinary course consistent with past practice and there has not been: (A) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company's or any of its Subsidiaries' capital stock or other equity or voting interests, except for dividends by a direct or indirect wholly owned Subsidiary of the Company to its parent, (B) any split, combination or reclassification of any of the Company's or any of its Subsidiaries' capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries, (C)(1) any grant by the Company or any of its Subsidiaries to any current or former director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries (collectively, "Company Personnel") of any bonus opportunity, any loan or any increase in any type of compensation or benefits, except for normal grants and increases, in each case, prior to the date of this Agreement in the ordinary course of business consistent with past practice, and there has not occurred any: or (a2) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariesSubsidiaries to any Company Personnel of any bonus, except sales for bonuses paid prior to the date of inventory this Agreement in the ordinary course of business consistent with past practice, (cD) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition grant by the Company or any of its subsidiaries Subsidiaries to any Company Personnel of any capital stock severance, change in control, retention, termination or similar compensation or benefits or increases therein, (E) any adoption of or entry by the Company or any of its Subsidiaries into, any amendment of or modification to or agreement to amend or modify (or announcement of an intention to amend or modify), or any termination of, (1) any change in control, severance or termination or similar Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, or (2) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the Companynature contemplated by this Agreement (all such Contracts under this clause (F), including any such Contract which is entered into on or after the date of this Agreement, collectively with (x) any current employment, deferred compensation, employee benefit, loan, indemnification, equity or equity-based or related compensation, consulting or similar Contract between the Company and its Subsidiaries, on the one hand, and any Company Personnel on the other hand, and (y) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any compensation or benefit to be provided to any Company Personnel, "Benefit Agreements"), (dG) split, combination the removal or reclassification modification of any capital stock restrictions on or terms of any incentive award (including any equity or equity-based or related compensation), (H) the taking of any action to accelerate the vesting or payment of any compensation or benefits under any Benefit Plan or Benefit Agreement disclosed on Section 4.01(m) of the CompanyCompany Letter, (eI) any material change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiariesSubsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fJ) any material Tax tax election inconsistent with past practices or the change in any material tax election or any settlement or compromise of any material Tax income tax liability, (gK) damage, destruction any write-down by the Company or loss any of its Subsidiaries of any of the material asset assets of the Company or any of its subsidiaries which materially affects Subsidiaries, or (L) any agreement with regard to the use acquisition, disposition or value thereof or a material part licensing of any improvement Leased by the Company material Intellectual Property or any of its subsidiaries pursuant to the Real Property Lease and which damagerights thereto, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than nonexclusive licenses granted in the ordinary course of the business of the Company and its Subsidiaries consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Western Digital Corp)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 4.08 of the Company Disclosure Schedule, since December 31, 1999, the Company has conducted its business only in the ordinary course consistent with past practice and, since such date, there has not been (i) any Company Material Adverse Effect, (ii) any event that could reasonably be expected to prevent or materially delay the performance of the Company's obligations pursuant to this Agreement and the consummation of the Merger by the Company, (iii) for any change by the TransactionsCompany in its accounting methods, since principles or practices, (iv) any declaration, setting aside or payment of any dividend or distribution in respect of the Balance Sheet Dateshares of Company Common Stock or any redemption, purchase or other acquisition of any of the Company's securities, (v) any increase in the compensation or benefits or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the Company and its subsidiaries have carried on and operated their respective businesses granting of stock 19 15 options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in all material respects the compensation payable or to become payable to any employees, officers, consultants or directors of the Company, (vi) any issuance or sale of any stock, notes, bonds or other securities, or entering into any agreement with respect thereto, (vii) any amendment to the Company's Articles of Incorporation or bylaws, (viii) other than in the ordinary course of business consistent with past practice, any (x) purchase, sale, assignment or transfer of any material assets, (y) mortgage, pledge or existence of any lien, encumbrance or charge on any material assets or properties, tangible or intangible, except for liens for Taxes not yet delinquent and there has not occurred any: (a) event such other liens, encumbrances or change that has had or would reasonably be expected to havecharges which do not, individually or in the aggregate, have a Company Material Adverse Effect, or (bz) sale waiver of any rights of material value or other disposition of or pledge or other encumbrance upon a material amount of property or other assets cancellation or any Real Property Lease as defined in Section 2.14 herein material debts or claims, (ix) any incurrence of the Company any material liability (absolute or any of its subsidiariescontingent), except sales of inventory for current liabilities and obligations incurred in the ordinary course of business consistent with past practice, (cx) declaration, setting aside or payment any incurrence of any dividend damage, destruction or other distribution (similar loss, whether in cashor not covered by insurance, stock materially affecting the business or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock properties of the Company, (dxi) split, combination or reclassification any entering into any transaction of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases nature other than in the ordinary course of business business, consistent with past practice, or (xii) any negotiation or agreement by the Company to do any of the things described in the preceding clauses (i) grant by the Company or any of its subsidiaries to any officer of any increase in through (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planxi).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Jupiter Communications Inc)
Absence of Certain Changes or Events. Except Since the date of the Company Balance Sheet, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), Company; (ii) as set forth any declaration, setting aside or payment of any dividend on, or other distribution (whether in Section 2.6 cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company Disclosure Scheduleor its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from Company Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements; (iii) for any split, combination or reclassification of any of the Transactions, since the Balance Sheet Date, Company’s or any of its Subsidiaries’ capital stock; (iv) any granting by the Company and or any of its subsidiaries have carried on and operated their respective businesses Subsidiaries of any increase in all material respects compensation or increase in benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practicepractice (other than to directors or executive officers of the Company), and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariesSubsidiaries of any bonus, except sales for bonuses made in the ordinary course of inventory business consistent with past practice (other than to directors or executive officers of the Company), or any granting by the Company or any of its Subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its Subsidiaries into, or modification or amendment of, any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby; (v) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.7(a)(i)) other than licenses entered into in the ordinary course of business consistent with past practice, (cvi) declaration, setting aside any amendment or payment of any dividend or other distribution (whether in cash, stock or property) consent with respect to any class of capital stock Company Material Contract (as defined in Section 2.15(a)) in effect since the date of the Company or Balance Sheet; (vii) any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition material change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP; (viii) any material revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects assets, including writing down the use value of capitalized inventory or value thereof writing off notes or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases accounts receivable other than in the ordinary course of business consistent with past practice, ; (iix) grant any written communication from Nasdaq with respect to the delisting of the Company Common Stock; (x) any cancellation by the Company or any of its subsidiaries to any officer Subsidiaries of any increase in material debts or waiver of any claims or rights of material value; (xi) any sale, transfer or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) other disposition outside of the Company Disclosure Scheduleordinary course of business of any properties or assets (real, copies of which have been made available to Purchaserpersonal or mixed, tangible or any grant intangible) by the Company or any of its subsidiaries Subsidiaries; or (xii) any agreement, whether in writing or otherwise, to take any employee other than an officer of any increase action described in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry this section by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanSubsidiaries.
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents filed and publicly available not later than two days prior or as expressly permitted pursuant to the date hereof Section 4.01(a)(i) through (the "Filed SEC Documents"xvi), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datedate of the most recent audited financial statements included in the Filed Company SEC Documents, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company been any Material Adverse EffectChange, and from such date until the date hereof there has not been (bi) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Subsidiaries, other than dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent)shareholders, or (ii) any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any shares of capital stock or any other securities of the CompanyCompany or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the CompanyCompany or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (eiv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee, independent contractor or consultant of the Company or any of its Subsidiaries (each, a “Participant”) of any increase in compensation, bonus or fringe or other benefits or any granting or payment of any type of compensation or benefits to any Participant not previously receiving or entitled to receive such type of compensation or benefits, except as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, and except for grants of bonus opportunities and increases in base compensation or benefits in each case in the ordinary course of business consistent with past practice, (B) any granting or payment by the Company or any of its Subsidiaries to any Participant of (1) any severance, termination, change in control or similar pay or benefits or any increases therein, or (2) any right to receive any severance, termination, change in control or similar pay or benefits, in each case except as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (C) any entry by the Company or tax any of its Subsidiaries into, or any amendment or termination of, (1) any employment, deferred compensation, consulting, severance, change of control, termination, indemnification, employee benefit, loan, stock repurchase or similar Contract between the Company or any of its Subsidiaries, on the one hand, and any Participant, on the other hand, or (2) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Participant, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such Contracts under this clause (C), including any such Contract which is entered into on or Table of Contents after the date of this Agreement, collectively, “Company Benefit Agreements”), (D) any payment of any benefit under, or the grant of any award under, or any amendment to, or termination of, any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of Company Stock Options, Company Restricted Stock, Company Stock-Based Awards, rights under the ESPPs, “phantom” stock, stock appreciation rights, “phantom” stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or on any awards made thereunder), except as required to comply with applicable law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, and except as expressly permitted by clause (A) of this Section 3.01(g)(iv), (E) the taking of any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement or (F) the taking of any action to accelerate the vesting or payment of any compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, (v) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (vi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or its subsidiariesbusinesses, except insofar as may have been required by a change in GAAP or applicable Law, (fvii) any material Tax tax election inconsistent with past practices or the any settlement or compromise of any material Tax income tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (iiSection 4.1(l) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionssince May 29, since the Balance Sheet Date1996, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects conducted the Business only in the ordinary course of business consistent with past practice, and there has not occurred any: been (ai) event any event, occurrence or change that development of a state of circumstances which has had or would could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of the Company's capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchaserepur- chase, redemption or other acquisition by the Company or any of its subsidiaries of any outstanding shares of capital stock or other securities of the CompanyCompany or any of its subsidiaries, (diii) any adjustment split, combination or reclassification of any of its capital stock or any issuance or the authorization of the Companyany issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fA) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any current or former director, officer or employee of the Company or any of its subsidiaries of any material increase in compen- sation or benefits, except for grants to employees who are not officers or directors in the ordinary course of business con- sistent with past practice, (B) any granting by the Company or any of its subsidiaries to any such director, officer or em- ployee of any increase in severance or termination pay (in- cluding the acceleration in the vesting of Shares (or other property) or the provision of any tax gross-up), or (C) any entry by the Company or any of its subsidiaries into any em- ployment, deferred compensation, except severance or termination agreement or arrangement with or for normal increases the benefit of any such current or former director, officer or employee, (v) any dam- age, destruction or loss, whether or not covered by insurance, that has had or could have a Material Adverse Effect, (vi) any change in accounting methods, principles or practices by the Company or any of its subsidiaries, (vii) any amendment, waiver or modification of any material term of any outstanding secu- rity of the Company or any of its subsidiaries or any of the Joint Venture Documents (or any material change in the opera- tions or financial arrangements relating to any of the Joint Ventures), (viii) any incurrence, assumption or guarantee by the Company or any of its subsidiaries of any material indebt- edness for borrowed money or other material obligations, (ix) any creation or assumption by the Company or any of its subsid- iaries of any Lien on any asset other than in the ordinary course of business consistent with past practice, but in no event with respect to assets with a value of, or obligations in an amount of, more than $100,000 for any one transaction or $250,000 in the aggregate, (x) any making of any loan, advance or capital contributions to or investment in any person other than in the ordinary course of business consistent with past practice, but in no event in the amount of more than $100,000 for any one transaction or $250,000 in the aggregate, and other than investments in cash equivalents made in the ordinary course of business consistent with past practice, (ixi) grant any transaction or commitment made, or any contract or agreement entered into, by the Company or any of its subsidiaries relat- ing to its assets or business on behalf of the Company or any of its subsidiaries of more than $100,000 for any transaction or $250,000 for any series of transactions, (xii) any acqui- sition or disposition of any assets or any merger or consolida- tion with any person on behalf of the Company or any of its subsidiaries of more than $100,000 for any transaction or $250,000 for any series of transactions, (xiii) any relinquish- ment by the Company or any of its subsidiaries of any contract or other right, in either case, material to the Company and its subsidiaries taken as a whole, other than transactions and com- mitments in the ordinary course of business consistent with past practice and those contemplated by the Agreement, or (xiv) any agreement, commitment, arrangement or undertaking by the Company or any of its subsidiaries to perform any officer of any increase action de- scribed in clauses (or acceleration of vesting or payment ofi) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in through (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planxiii).
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as disclosed in the Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) Reports or as set forth disclosed in Section 2.6 5.6 of the Company Disclosure Schedule, since December 31, 1996, there has not been (i) any transaction, commitment, dispute or other event or condition (financial or otherwise) of any character (whether or not in the ordinary course of business) individually or in the aggregate that has had, or would reasonably be expected to have, a Company Material Adverse Effect; (ii) any damage, destruction or loss, whether or not covered by insurance, which has had, or would reasonably be expected to have, a Company Material Adverse Effect; (iii) for the Transactions, since the Balance Sheet Date, any entry into any commitment or transaction material to the Company and its subsidiaries have carried on and operated their respective businesses in all material respects Subsidiaries taken as a whole (including, without limitation, any borrowing or sale of assets) except in the ordinary course of business consistent with past practice, and there has not occurred any: ; (aiv) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock; (v) any class of capital stock of the Company material change in its accounting principles, practices or methods; (vi) any of its subsidiaries (other than dividends by a direct repurchase or indirect wholly owned subsidiary of the Company redemption with respect to its parent), or capital stock; (vii) any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any of the Company's capital stock or the issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, shares of the Company's capital stock; (viii) any grant of or any amendment of the terms of any option to purchase shares of capital stock of the Company, ; (eix) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries Subsidiaries to any director, officer or employee of the Company or any of its Subsidiaries of (A) any increase in compensation, except for normal increases compensation (other than in the case of employees in the ordinary course of business consistent with past practice, ) or (iB) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under ; (x) any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries Subsidiaries into any (or amendment of any existing) employment, severance severance, bonus or termination agreement with any officerdirector, (k) establishment, adoption, amendment officer or modification of, employee of the Company or increase any of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) its Subsidiaries; or (lxi) acceleration any agreement (whether or not in writing), arrangement or understanding to do any of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing. Section 5.7.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Columbia Hca Healthcare Corp/)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Since December 31, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule2005, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there no event has not occurred any: (a) event or change that which has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect on 1st Service, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of and prior to the Company or date hereof, neither 1st Service nor any of its subsidiariesSubsidiaries has (i) effected or authorized any adjustment, split, combination or reclassification of any of its capital stock, or redeemed, purchased or otherwise acquired, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock or stock appreciation rights (except sales pursuant to the exercise of inventory stock options); (ii) declared, set aside or paid any dividend; (iii) sold, licensed, leased, encumbered, mortgaged, transferred, assigned or otherwise disposed of any of its material assets, properties or other rights or agreements other than in the ordinary course of business consistent with past practice, ; (civ) declaration, setting aside increased the compensation or payment fringe benefits of any dividend present or other distribution (whether in cash, stock former director or property) with respect to any class officer of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company 1st Service or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, Subsidiaries (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in salary or wages of nonexecutive officers or employees in the ordinary course of business consistent with past practice), (i) grant by the Company or granted any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries pay to any present or former director, officer or employee other than an of 1st Service or its Subsidiaries except in connection with terminations of employment of non-officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except employees in the ordinary course of business consistent with past practice; (v) amended or terminated any 1st Service Benefit Plan; (vi) made any material change in its policies and practices with respect to (x) underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service Loans or (jy) entry hedging its Loan positions or commitments; (vii) made any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required by GAAP or the Company Code; (viii) made or changed any material Tax election or settled or compromised any material Tax liability of 1st Service or any of its subsidiaries into any Subsidiaries; or (or amendment of any existingix) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofagreed to, or increase made any commitment to, take any of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Southern National Bancorp of Virginia Inc)
Absence of Certain Changes or Events. Except (i) as disclosed Since the date of the most recent audited financial statements included in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, practice and there has not occurred any: been (aA) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a any material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of adverse effect on the Company or any state of its subsidiariesfacts, except sales of inventory change, development, effect or occurrence that is reasonably likely to result in a material adverse effect on the ordinary course of business consistent with past practiceCompany, (cB) prior to the date of this Agreement, any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (subsidiaries’ capital stock or other than equity or voting interests, except for dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), (C) prior to the date of this Agreement, any split, combination or reclassification of any of the Company’s or any of its subsidiaries’ capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company or any repurchaseof its subsidiaries, redemption or other acquisition (D) prior to the date of this Agreement, (v) (I) any granting by the Company or any of its subsidiaries to any current or former director, officer, employee, independent contractor or consultant of the Company or any of its subsidiaries (collectively, “Company Personnel”) of any capital bonus opportunity or any increase in any type of compensation or benefits, except for grants of bonus opportunities and increases of base compensation, in each case, prior to the date of this Agreement in the ordinary course of business consistent with past practice, or (II) any payment by the Company or any of its subsidiaries to any Company Personnel of any bonus, except for bonuses paid or accrued prior to the date of this Agreement in the ordinary course of business consistent with past practice, (w) any granting by the Company or any of its subsidiaries to any Company Personnel of any severance or termination pay or of the right to receive any severance or termination pay or increases therein except for any granting of such pay or rights prior to the date of this Agreement in the ordinary course of business consistent with past practice, (x) any entry by the Company or any of its subsidiaries into, or any amendment of, (I) any currently effective employment, deferred compensation, severance, termination, employee benefit, loan, indemnification, stock repurchase, consulting or similar agreement (other than in the ordinary course of business consistent with past practice) between the Company or any of its subsidiaries, on the one hand, and any Company Personnel, on the other hand, or (II) any agreement between the Company or any of its subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement (all such agreements under this clause (x), including any agreement of a type referred to in this Section 3.01(g)(D)(x)(II) which is entered into on or after the date hereof, collectively, “Benefit Agreements”), (y) any material amendment of any incentive award (including Stock Options, stock appreciation rights, performance units, restricted stock, stock repurchase rights or other stock-based or stock-related awards) or the material removal or modification of any restrictions in any such award or (z) any material amendment to, or material modification of, any Company Stock Plan or the ESPP, (E) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate is reasonably likely to have a material adverse effect on the Company, (dF) splitprior to the date of this Agreement, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fG) prior to the date of this Agreement, any tax election that individually or in the aggregate is reasonably likely to have a material Tax election inconsistent with past practices adverse effect on the Company or the any of its tax attributes or any settlement or compromise of any material Tax liabilityincome tax liability or (H) prior to the date of this Agreement, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased revaluation by the Company or any of its subsidiaries pursuant to of any of the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage material assets of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensationsubsidiaries, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanGAAP.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rational Software Corp)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, each of the Company and its subsidiaries have carried on and operated their Subsidiaries has conducted its respective businesses business in all material respects only in the ordinary course of business consistent with past practicepractices and in compliance with all applicable laws and regulations, and without limiting the foregoing, there has not occurred anybeen: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company any Material Adverse EffectEffect on the Company, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Subsidiaries’ capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from Employees following their termination as such pursuant to the terms of their pre-existing stock option or purchase agreements, (diii) any split, combination or reclassification of any capital stock of the Company’s or any of its Subsidiaries’ capital stock, (eiv) any material change by the Company in financial or tax its accounting methods, principles or practices practices, except as required by GAAP, (v) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a its Subsidiaries’ material part of assets, (vi) any improvement Leased cancellation by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction Subsidiaries of any debts or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage waiver of insurance, if any, shall be taken into account but shall not be determinative for purposes any claims or rights of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect)value, (hvii) grant any sale, transfer or other disposition of any properties or assets by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination paySubsidiaries, except in the ordinary course of business consistent with past practicebusiness, (jviii) entry any fact, event, circumstance, damage, destruction or loss, whether or not covered by insurance, that would reasonably be expected to have a Material Adverse Effect on the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofCompany, or increase of benefits under, (ix) any plan that would constitute a Company Plan written agreement (as hereinafter definedother than this Agreement or the agreements contemplated hereby) or (l) acceleration of vesting of to take any Option, except acceleration previously provided for action described in the Stock Planthis Section 2.5.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Applied Imaging Corp)
Absence of Certain Changes or Events. Except (i) as disclosed in contemplated by this Agreement, during the SEC Documents filed and publicly available not later than two days prior period from the Latest Balance Sheet Date to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Datethis Agreement, the Company Target Companies and its subsidiaries the Subsidiary have carried on and operated their respective businesses in all material respects in the ordinary course of business business, consistent with past practice, and . Since the Latest Balance Sheet Date there has not occurred anybeen no: (a) event or change in the Target Companies and the Subsidiary, taken as a whole, that has had had, or would could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, ; (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any shares of their capital stock stock; (c) redemption, purchase or acquisition of the Companytheir capital stock; (d) change in their cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; (e) change entry into any agreement that would constitute a Material Contract, other than in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, ordinary course of business; (f) material Tax election inconsistent transfer, assignment or grant of any license or sublicense of any rights under or with past practices respect to any Intellectual Property owned by either Target Company or the settlement or compromise of any material Tax liability, Subsidiary; (g) material damage, destruction or loss of any material asset of the Company (whether or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject ) to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), their property; (h) grant acceleration, termination, modification to or cancellation of any Material Contract; (i) material capital expenditure, other than as contemplated by the Company any business plan or forecast; (j) imposition of any Encumbrance upon any of their material properties, capital stock or assets, tangible or intangible; (k) loan to (or forgiveness of any loan to), or entry into any other material transaction with, any of its subsidiaries stockholders or current or former directors, officers and employees, other than in the ordinary course of business; (l) entry into a new line of business or abandonment or discontinuance of existing lines of business; (m) action by the Target Companies or the Subsidiary to make, change or rescind any Tax election, amend any Tax Return, adopt or change any accounting method or period in respect of Taxes, enter into any Tax-sharing, allocation, compensation or like agreement, settle any claim or assessment in respect of Taxes, request any Tax ruling or consent to any officer extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Purchaser in respect of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of taxable period that ends after the Company Disclosure Schedule, copies of which have been made available to PurchaserClosing Date, or omit to take any granting by action relating to the Company or any of its subsidiaries to any employee filing of any increase in compensationTax Return or the payment of any Tax; (n) incur, except assume or guarantee any indebtedness for normal increases borrowed money, other than in the ordinary course of business and consistent with past practicepractice or pursuant to that certain Loan and Security Agreement, dated as of February 26, 2011, between RPM and TD Bank, N.A.; (io) grant by the Company issue, sell, deliver, redeem or purchase any of its subsidiaries equity securities, or grant or enter into any options, warrants, rights, agreements or commitments with respect to the issuance of its securities, or amend any officer terms of any such equity securities or agreements; (p) increase in the rate of compensation or benefits of, or pay, agree to pay or accelerate any benefit (including severance pay) to, any present or acceleration of vesting former members, managers, directors, officers or payment of) severance or termination payemployees, except as was may be required under by any employment, severance or termination agreements set forth on Section 2.6(i) of the existing Company Disclosure Schedule, copies of which have been made available to PurchaserBenefit Plan, or any grant by the Company agreement, policy, program or any of its subsidiaries arrangement, or to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except employees in the ordinary course of business consistent with past practice, (j) entry by the of such Target Company or the Subsidiary; (q) enter into, adopt, terminate or amend any Company Benefit Plan, employment or severance agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement; (r) suffered any strike, work stoppage, slow-down or other labor disturbance, or hired, terminated, promoted or demoted any employee, consultant, independent contractor, executive officer, director or other service provider, other than in the ordinary course of business; (s) sell, lease, transfer or otherwise dispose of any material capital assets, real, personal or mixed, or mortgage or encumber any properties or assets, whether real or personal, other than (i) in the ordinary course of business or (ii) a sale, transfer or disposition to a third party for fair market value; (t) acquire or agree to acquire by merging or consolidating with, or by purchasing the stock or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets, other than (i) in the ordinary course of business or (ii) in connection with the purchase of capital equipment; (u) effectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act) affecting in whole or in part any “site of employment” (as such term is defined under the WARN Act) of the Target Companies or the Subsidiary; (v) amend its Fundamental Documents; (w) change any of its subsidiaries into any (accounting principles, methods or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (practices other than as hereinafter defined) required by GAAP; or (lx) acceleration agree, whether in writing or otherwise, to do any of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 1 contract
Samples: Securities Purchase Agreement (ExlService Holdings, Inc.)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior Company Reports, since the Company Audit Date, there has been no event or set of circumstances that has resulted in or would be reasonably likely to result in a Company Material Adverse Effect. Except as disclosed in the date hereof (the "Filed SEC Documents"), (ii) Company Reports or as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactionson Schedule 2.7, since the Balance Sheet Company Audit Date, the Company and each of its subsidiaries have carried on and operated their respective businesses in all material respects Subsidiaries has conducted its business in the ordinary course of business consistent with past practicebusiness, and there has not occurred any: (a) event paid any dividend or change that has had distribution in respect of, or would reasonably be expected redeemed or repurchased any of, its capital stock other than the Company’s repurchase of unvested shares, at the original purchase price paid per share, from terminating employees or consultants; (b) incurred loss of, or significant injury to, any of the material Assets, whether as the result of any natural disaster, labor trouble, accident, other casualty, or otherwise; (c) incurred, or become subject to, any material liability (absolute or contingent, matured or unmatured, known or unknown), and knows of no basis for such liabilities, except current liabilities incurred in the ordinary course of business; (d) mortgaged, pledged or subjected to haveany Encumbrance any of its Assets; (e) sold, exchanged, transferred or otherwise disposed of any of its Assets except in the ordinary course of business, or canceled any debts or claims; (f) written down the value of any Assets or written off as uncollectible any accounts receivable, except write downs and write-offs in the ordinary course of business, none of which, individually or in the aggregate, a are material; (g) entered into any transactions other than in the ordinary course of business; (h) made any change in any method of accounting or accounting practice; or (i) made any agreement to do any of the foregoing, other than negotiations with CIENA and its representatives regarding the transactions contemplated by this Agreement. Since the Company Material Adverse EffectAudit Date, except as disclosed in the Company Reports or set forth in Schedule 2.7, there has not been: (ba) sale any change in the financial condition, assets, liabilities, personnel policies or other disposition of practices, or pledge contracts or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein business of the Company or any of its subsidiariesSubsidiaries or in its relationships with suppliers, customers, licensors, licensees, distributors, lessors or others, except sales changes on the ordinary course of inventory business (it being understood that the Company has incurred losses from operations); (b) any increase in the compensation or benefits payable or to become payable by the Company to any of the directors, officers, consultants or employees of the Company, other than salary increases in connection with customary performance reviews and customary bonuses consistent with past practices; (c) any discharge or satisfaction of any Lien or payment of any liability or obligation other than current liabilities in the ordinary course of business consistent with past practice, (c) declaration, setting aside business; or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock agreement to do any of the Companyforegoing, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in negotiations with CIENA and its representatives regarding the ordinary course of business consistent with past practice, (j) entry transactions contemplated by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planthis Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. Except Since June 30, 2000, there ------------------------------------ has not been any Material Adverse Effect on the Company. Since December 31, 1999, there has not been: (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (ii) any split, combination or reclassification of any of the Company's or any of its subsidiaries' capital stock, (iii) any granting by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination increase in compensation or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiariesfringe benefits, except insofar as may have been required by a change for normal increases of cash compensation in GAAP or applicable Law, (f) material Tax election inconsistent the ordinary course of business consistent with past practices or the settlement or compromise of any material Tax liabilitypractice, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased payment by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensationbonus, except as was required under any employment agreements set forth on Section 2.6(h) for bonuses made in the ordinary course of the Company Disclosure Schedule, copies of which have been made available to Purchaserbusiness consistent with past practice, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant severance or termination pay or any entry by the Company or any of its subsidiaries to into any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any currently effective employment, severance severance, termination or termination agreements set forth on Section 2.6(i) indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practicenature contemplated hereby, (jiv) entry by the Company or any of its subsidiaries into any (licensing or amendment other agreement with regard to the acquisition or disposition of any existingIntellectual Property (as defined in Section 2.19 hereof) employmentother than ------------ licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with the SEC, severance or termination agreement with any officerand other than licenses disclosed on Section 2.19(j) of the Company Disclosure Letter, (kv) establishmentany material change by the Company in its accounting methods, adoptionprinciples or practices, amendment except as required by concurrent changes in GAAP, (vi) any revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or modification ofwriting off notes or accounts receivable, or increase (vii) any sale of benefits under, any plan that would constitute a assets of the Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for other than in the Stock Planordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. Except as set forth in Schedule 2.9 hereto or in the Unaudited Financial Statements, or as otherwise provided in this Agreement, since December 31, 2004, there has not been: (i) as disclosed in any Material Adverse Effect on the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents")Company, (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)Company's stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (diii) any split, combination or reclassification of any capital stock of the Company's capital stock, (eiv) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensationcompensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, (i) grant or any payment by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination paybonus, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been for bonuses made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by Company into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (jv) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any issuance of capital stock of the Company, (ix) any revaluation by the Company of any of its subsidiaries into assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any (or amendment sale of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofassets of the Company other than in the ordinary course of business, or increase (x) any agreement, whether written or oral, to do any of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tremisis Energy Acquisition Corp)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"or in Schedule 4.1(l), (ii) as set forth in Section 2.6 of the Company Disclosure Schedulesince December 31, or (iii) for the Transactions, since the Balance Sheet Date2002, the Company and its subsidiaries Subsidiary have carried on conducted the Business only in the ordinary course consistent with past practice, and operated there has not been: (i) other than any event relating to the economy or securities markets in general, any event, occurrence or development of a state of circumstances which has had or could reasonably be expected to have a Material Adverse Effect; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company's or its Subsidiary's capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or its Subsidiary or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their respective businesses termination pursuant to the terms of their pre-existing stock option or purchase agreements; (iii) any split, combination or reclassification of any of the Company's or its Subsidiary's capital stock; (iv) any granting by the Company or its Subsidiary of any increase in all material respects compensation or fringe benefits or any payment by the Company or its Subsidiary of any bonus, or any granting by the Company or its Subsidiary of any increase in severance or termination pay or any entry by the Company or its Subsidiary into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby; (v) entry by the Company or its Subsidiary into (x) any licensing or other contract relating to the use, acquisition or disposition of any Intellectual Property other than (1) end-user licenses of commercially available software applications for internal use by the Company in the ordinary course of business consistent with past practice, and there has not occurred any: (a2) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein commercial licenses of the Company or any of its subsidiaries, except sales of inventory Company's software in the ordinary course of business consistent with past practice, or (cy) declaration, setting aside any amendment or payment of any dividend or other distribution (whether in cash, stock or property) consent with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption material licensing or other contract relating to the use, acquisition or disposition of any Intellectual Property; (vi) any change by the Company or any of in its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices practices, except as required by concurrent changes in GAAP; (vii) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liabilityof its assets, (g) damageincluding, destruction without limitation, writing down the value of capitalized inventory or loss writing off notes or accounts receivable or any sale of any material asset assets of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than in the ordinary course of business consistent with past practice, ; (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (jviii) entry by the Company or its Subsidiary into any contract filed or required to be filed by the Company with the SEC and not so filed; (ix) any negotiation or agreement by the Company or its Subsidiary to do any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for the things described in the Stock Planpreceding clauses (i) through (viii).
Appears in 1 contract
Absence of Certain Changes or Events. Except (ia) as disclosed in the SEC Documents filed and publicly available not later than two days prior to Since the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure ScheduleBalance Sheet, or (iii) for the Transactions, since the Balance Sheet Date, business of the Company and its subsidiaries have carried on and operated their respective businesses in all material respects has been conducted in the ordinary course of business consistent with past practice, practices (other than the transactions contemplated by this Agreement and the Transaction Option Agreement) and there is not and has not occurred any: been (ai) event any event, occurrence, development or change state of circumstances or facts that has had or would could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Effect on the Company or give rise to a Material Adverse Change (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of 9.3(c)) on the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practiceCompany, (cii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries' capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases which are not, individually or in the aggregate, material in amount from employees following their termination pursuant to the terms of their pre- existing stock option or purchase agreements, (diii) split, combination or reclassification of any capital stock of material change by the Company, (e) change Company in financial or tax its accounting methods, principles or practices practices, except as required by concurrent changes in GAAP, (iv) any revaluation by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damageassets, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than in the ordinary course of business consistent with past practicebusiness, or (iv) grant by any condition, event or occurrence which, individually or in the Company aggregate, could reasonably be expected to prevent or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) materially delay the ability of the Company Disclosure Schedule, copies of which have been made available to Purchaser, consummate the transactions contemplated by this Agreement and the Transaction Option Agreement or any grant by the Company perform its obligations hereunder or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planthereunder.
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 2.9 of the Company Disclosure Schedule, or (iii) for the TransactionsLetter, since the Interim Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and Date there has not been, occurred anyor arisen: (a) any event or change that condition of any character that, to the knowledge of the Company, has had or would is reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, Effect on the Company; (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company’s or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent)subsidiaries’ capital stock, or any repurchasepurchase, redemption or other acquisition by the Company of any of the Company’s capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements; (c) any split, combination or reclassification of any of the Company’s or any of its subsidiaries’ capital stock; (d) any granting by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination increase in compensation or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries fringe benefits to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, Employee (except for normal increases in the ordinary course of business consistent with past practicepractice in the base salaries of non-officer Employees in an amount that does not exceed for four percent (4%) of such base salaries per employee), (i) grant of such base salaries per employee), or any payment by the Company or any of its subsidiaries of any bonus (except for bonuses made to current non-officer Employees in the ordinary course of business consistent with past practice or pursuant to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available bonus plan furnished to PurchaserParent), or any grant entry by the Company or one of its subsidiaries into any Contract (or amendment of an existing Contract) to grant or provide severance, acceleration of vesting, termination pay or other similar benefits; (e) any change by the Company in its accounting methods, principles or practices (including any change in depreciation or amortization policies or rates or revenue recognition policies), except as required by concurrent changes in GAAP; (f) any revaluation by the Company of any of its subsidiaries to assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable or any employee sale of assets of the Company other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice; (g) the incurring, creation or assumption of any material Encumbrance, any discharge of any Encumbrance or material liability which was not shown on the Interim Balance Sheet or incurred in the ordinary course of business since the Interim Balance Sheet Date, any material liability or obligation for borrowed money or any material liability or obligation as guaranty or surety with respect to the obligations of others; and (jh) entry any announcement of, any negotiation by or any agreement by the Company or Company, any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification ofsubsidiaries, or increase any Employee on behalf of benefits underthe Company, to do any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for the things described in the Stock Planpreceding clauses (a) through (h) (other than negotiations or agreements with Parent and Merger Sub regarding the Transactions).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Reptron Electronics Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior From December 31, 2008 to the date hereof (the "Filed SEC Documents")of this Agreement, (iix) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses only in all material respects the ordinary course consistent with past practice and (y) there has not occurred (A) any Material Adverse Effect or any state of facts, change, development, event, effect (including any effect resulting from an occurrence prior to December 31, 2008), condition, occurrence, action or omission that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect, (B) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock or other equity or voting interests, except for dividends by a direct or indirect wholly owned Subsidiary of the Company to its parent, (C) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries, (D)(1) any grant by the Company or any of its Subsidiaries to any current or former director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries (collectively, “Company Personnel”) of any bonus or award opportunity, any loan or any increase in any type of compensation or benefits, except for grants of normal bonus opportunities and normal increases of base cash compensation, in each case, in the ordinary course of business consistent with past practice, and there has not occurred any: or (a2) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of payment by the Company or any of its subsidiariesSubsidiaries to any Company Personnel of any bonus or award, except sales for bonuses or awards paid or accrued prior to the date of inventory this Agreement in the ordinary course of business consistent with past practice, (cE) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition grant by the Company or any of its subsidiaries Subsidiaries to any Company Personnel of any capital stock severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein or of the Companyright to receive any severance, separation, change in control, retention, termination or similar compensation or benefits or increase therein, (dF) splitany adoption or establishment of or entry by the Company or any of its Subsidiaries into, any amendment of, modification to or termination of, or agreement to amend, modify or terminate, or any termination of (or announcement of an intention to amend, modify or terminate), (1) any employment, deferred compensation, change in control, severance, termination, employee benefit, loan, indemnification, retention, equity or equity-based compensation, consulting or similar Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, (2) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement (alone or in combination with any other event) or reclassification (3) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any capital stock of the Companycompensation or benefit to be provided to any Company Personnel (all such Contracts referred to in subparagraphs (1), (e2) and (3) of this clause (F), including any such Contract that is entered into on or after the date of this Agreement, but not including any Benefit Plan, collectively, “Benefit Agreements”), (G) any grant or amendment of any award under any Benefit Plan or Benefit Agreement (including the grant or amendment of Stock Options, RSUs, DSUs, restricted stock, stock appreciation rights, performance units, stock repurchase rights or other equity or equity-based compensation) or the removal or modification of any restrictions in any such award, (H) the taking of any action to accelerate, or that could reasonably be expected to result in the acceleration of, the time of vesting or payment of any rights, compensation, benefits or funding obligations under any Benefit Plan or Benefit Agreement, (I) any material change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiariesSubsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fJ) any material Tax tax election inconsistent with past practices or the change in any material tax election or any settlement or compromise of any material Tax tax liability, (gK) damage, destruction any material write-down by the Company or loss any of its Subsidiaries of any of the material asset assets of the Company or any of its subsidiaries which materially affects Subsidiaries or (L) any licensing or other agreement with regard to the use acquisition or value thereof or a material part disposition of any improvement Leased by the Company material Intellectual Property or any of its subsidiaries pursuant to the Real Property Lease and which damagerights thereto, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases other than nonexclusive licenses granted in the ordinary course of the business of the Company and its Subsidiaries consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Except for incurring the expenses, making the payments, or the other transactions contemplated in or by this Agreement, since the date of the Reference Balance Sheet, (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 each of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and its subsidiaries have carried on and operated their respective Subsidiaries has conducted its businesses in all the ordinary course consistent with past practice and has not incurred any material respects liability, except in the ordinary course of its business consistent with past practice, and ; (ii) there has not occurred any: (a) event been any change in the business, financial condition, Liabilities, assets, technology, Intellectual Property, employee relations, customer relations, supplier relations, manufacturer relations or change distributor relations, or results of operations of the Company or its Subsidiaries that has had had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect on the Company, (biii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or there has not been any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class shares of capital stock Company Common Stock; (iv) there has not been any split, combination or reclassification of any Company Common Stock or any issuance or commitment to issue or the authorization of any issuance of any Company Common Stock or other securities convertible into, in exchange or in substitution for any shares of Company Common Stock; (v) there has not been (A) any granting by the Company or any of its Subsidiaries to any employee of the Company or any of its subsidiaries (Subsidiaries of any increase in compensation, other than dividends by a direct or indirect wholly owned subsidiary in the ordinary course of the Company to its parent)business, or (B) any repurchase, redemption or other acquisition granting by the Company or any of its subsidiaries Subsidiaries to any such employee of any capital stock increase in severance or termination pay, (C) any entry by the Company or any of its Subsidiaries into any employment, severance or termination agreement, policy or arrangement with any employee; or (D) any transaction with a Company Stockholder, director or employee; (vi) there has not been any material adverse change in the Company’s business relationships with any clients or marina owners (“Customers”), and no event of default (dwith or without notice or lapse of time, or both) split, combination or reclassification of has occurred under any capital stock of agreement between the Company, Company and its Customers; and (evii) there has not been any change in financial or tax accounting methods, principles or practices by either the Company or any of its subsidiariesSubsidiaries affecting their assets, Liabilities or business, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanGAAP.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ambassadors International Inc)
Absence of Certain Changes or Events. Except Since the Balance Sheet Date, to the best of Seller’s knowledge there has not been: (i) as disclosed any material adverse change in the SEC Documents filed business, operations, properties or condition (financial or other) of Seller, and publicly available not later than two days prior no factor or condition exists and no event has occurred that would be likely to the date hereof (the "Filed SEC Documents")result in any such change, (ii) as set forth in Section 2.6 of any material loss, damage or other casualty to the Company Disclosure SchedulePurchased Assets (other than any for which insurance awards have been received or guaranteed), or (iii) for any loss of the Transactionsemployment, since services or benefits of any key employee of the Business. Since the Balance Sheet Date, the Company and Seller has operated its subsidiaries have carried on and operated their respective businesses in all material respects Business in the ordinary course of business consistent with past practice, practice and there has not occurred anynot: (ai) event incurred or change that has had failed to pay or would reasonably be expected to havesatisfy any material obligation or liability (whether accrued, individually contingent or in the aggregate, a Company Material Adverse Effect, (botherwise) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (cii) declaration, setting aside incurred or payment of failed to discharge or satisfy any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (Encumbrance other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases Encumbrances arising in the ordinary course of business consistent with past practice, (iiii) grant by the Company sold or transferred any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) the assets of the Company Disclosure ScheduleBusiness, copies other than in the ordinary course of which have been made available to Purchaserbusiness consistent with past practice, or waived any grant by rights material to the Company or any operations of its subsidiaries business, (iv) defaulted on any material obligation, (v) entered into any transaction material to its Business, or materially amended or terminated any employee other than an officer of any increase in (arrangement material to its Business or acceleration of vesting or payment of) severance or termination payrelating to its Business, except in the ordinary course of business consistent with past practice, (jvi) entry by settled, released or forgiven any claim or litigation or waived any right thereto, (vii) any bonus or profit sharing distribution or similar payment of any kind to any individual in connection with the Company Business or any of its subsidiaries entered into any termination, notice, pay in lieu of notice, long-term service payments, severance or change of control agreement with any individual, (viii) any increase in the compensation paid or amendment payable to Seller’s employees (including any improvements to notice, pay in lieu of any existing) employmentnotice, change of control, severance or termination agreement with any officer, (kpay) establishment, adoption, amendment or modification ofchange to the benefits to which current or former employees are entitled, or increase (ix) entered into any agreement or made any commitment to do any of benefits underthe foregoing, any plan that would constitute a Company Plan (in each case except as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for described in the Stock PlanSchedule 3.5 hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed by the Company and publicly available not later than two days prior to the date hereof of this Agreement (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 since the date of the Company Disclosure Schedule, or (iii) for most recent financial statements included in the Transactions, since the Balance Sheet DateFiled SEC Documents, the Company and its subsidiaries have carried on and operated conducted their respective businesses in all material respects only in the ordinary course of business consistent with past practice, and there has not occurred any: been (ai) event or any material adverse change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of 8.03) with respect to the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practiceCompany, (cii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any class of capital stock of the Company Company's or any of its subsidiaries (other than subsidiaries' capital stock except for dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchasepurchase, redemption or other acquisition of any of the Company's capital stock or any other securities of the Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company's or any of its subsidiaries' capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's or any of its subsidiaries' capital stock, (iv) (x) any granting by the Company or any of its subsidiaries of any capital stock increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company or any of its subsidiaries of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, in each case to any officer, director or employee, (y) any granting by the Company or any of its subsidiaries to any officer or employee of any increase in severance or termination pay or (z) any entry by the Company or any of its subsidiaries into (A) any currently effective employment, severance, termination or indemnification agreement, or consulting agreement (other than in the ordinary course of business consistent with past practice), with any current or former officer, director, employee or consultant or (B) any agreement with any current or former officer, director, employee or consultant the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (v) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate would have a material adverse effect on the Company, (dvi) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiariesCompany, except insofar as may have been required by a change in GAAP or applicable LawGAAP, (fvii) any tax election that individually or in the aggregate would have a material Tax election inconsistent with past practices adverse effect on the Company or the any of its tax attributes or any settlement or compromise of any material Tax income tax liability, (gviii) damage, destruction any revaluation by the Company of any of its material assets or loss (ix)(A) any licensing or other agreement with regard to the acquisition or disposition of any material asset of the Company Intellectual Property (as defined in Section 3.01(p)) or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases rights thereto other than licenses in the ordinary course of business consistent with past practicepractice or (B) any amendment or consent with respect to any licensing agreement filed, (i) grant or required to be filed, by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of with the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock PlanSEC.
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as disclosed in the Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) Reports or as set forth disclosed in Section 2.6 5.6 of the Company Disclosure Schedule, since December 31, 1996, there has not been (i) any transaction, commitment, dispute or other event or condition (financial or otherwise) of any character (whether or not in the ordinary course of business) individually or in the aggregate that has had, or would reasonably be expected to have, a Company Material Adverse Effect; (ii) any damage, destruction or loss, whether or not covered by insurance, which has had, or would reasonably be expected to have, a Company Material Adverse Effect; (iii) for the Transactions, since the Balance Sheet Date, any entry into any commitment or transaction material to the Company and its subsidiaries have carried on and operated their respective businesses in all material respects Subsidiaries taken as a whole (including, without limitation, any borrowing or sale of assets) except in the ordinary course of business consistent with past practice, and there has not occurred any: ; (aiv) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock; (v) any class of capital stock of the Company material change in its accounting principles, practices or methods; (vi) any of its subsidiaries (other than dividends by a direct repurchase or indirect wholly owned subsidiary of the Company redemption with respect to its parent), or capital stock; (vii) any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any of the Company's capital stock or the issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, shares of the Company's capital stock; (viii) any grant of or any amendment of the terms of any option to purchase shares of capital stock of the Company, ; (eix) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries Subsidiaries to any director, officer or employee of the Company or any of its Subsidiaries of (A) any increase in compensation, except for normal increases compensation (other than in the case of employees in the ordinary course of business consistent with past practice, ) or (iB) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under ; (x) any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries Subsidiaries into any (or amendment of any existing) employment, severance severance, bonus or termination agreement with any officerdirector, (k) establishment, adoption, amendment officer or modification of, employee of the Company or increase any of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) its Subsidiaries; or (lxi) acceleration any agreement (whether or not in writing), arrangement or understanding to do any of vesting of any Option, except acceleration previously provided for in the Stock Planforegoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Value Health Inc / Ct)
Absence of Certain Changes or Events. Except Since December 31, 2000, the ------------------------------------ Company and each Company Subsidiary has conducted its respective business only in the ordinary and usual course and in a manner consistent with past practice and, since such date, there has not been any (i) as disclosed in purchase, redemption, retirement, or other acquisition by the SEC Documents filed and publicly available not later than two days prior to Company or any Company Subsidiary from the date hereof (the "Filed SEC Documents"), Company Stockholders or any stockholder of such Company Subsidiary of any shares of capital stock; (ii) as set forth in Section 2.6 declaration or payment of any dividend or other distribution or payment by the Company Disclosure Schedule, or any Company Subsidiary in respect of shares of its capital stock; (iii) for the Transactions, since the Balance Sheet Date, payment or increase by the Company and its subsidiaries have carried on and operated their respective businesses in all material respects or any Company Subsidiary of any bonuses, salaries, or other compensation to any stockholder, director, officer, or employee or entry by the Company or any Company Subsidiary into any employment, severance, or similar contract with any director, officer, or employee; except in the ordinary course of business business, consistent with past practicepractices; (iv) adoption of, and there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or increase in the aggregatepayments to, a or benefits under, any Company Material Adverse Effect, Benefit Plan (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein 2.16(a)); (v) damage to or destruction or loss of, any asset or property of the Company or any Company Subsidiary, whether or not covered by insurance, that had or will have a Material Adverse Effect; (vi) entry into, termination of, or receipt of its subsidiarieswritten notice of termination of any license, except distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or any transaction involving a total remaining commitment by or to the Company or any Company Subsidiary of at least $100,000; (vii) sale (other than sales of inventory in the ordinary course of business consistent with past practicebusiness), (c) declarationlease, setting aside or payment other disposition of any dividend asset or other distribution (whether in cash, stock or property) with respect to any class of capital stock property of the Company or any Company Subsidiary or mortgage, pledge, or imposition of its subsidiaries (other than dividends by a direct any Lien on any material asset or indirect wholly owned subsidiary property of the Company to its parent)or any Company Subsidiary, including the sale, lease, or other disposition of any repurchase, redemption of the Intellectual Property Rights; (viii) cancellation or other acquisition waiver of any claims or rights with a value to the Company or any Company Subsidiary in excess of $100,000; (ix) material change in the accounting methods used by the Company or any of its subsidiaries Company Subsidiary; (x) incurrence of any indebtedness for borrowed money or capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in lease obligations outside the ordinary course of business; (xi) guaranty of any indebtedness of another Person; (xii) acquisition by merger or consolidation with, or by purchasing a substantial equity interest in, or by any other manner, any business consistent with past practice, (i) grant by the Company or any Person; (xiii) acceleration, termination (other than end-of-term expirations), modification, cancellation, declaration of its subsidiaries a default under or indication of an intent to terminate any officer of any increase in Material Agreement (or acceleration series of vesting related Material Agreements); (xiv) any capital expenditure (or payment ofseries of related capital expenditures) severance either involving more than $50,000 or termination pay, except as was required under any employment, severance that is outside the ordinary course of business; (xv) delay or termination agreements set forth on Section 2.6(i) postponement of the Company Disclosure Schedulecollection of accounts receivable or the payment of accounts payable and other liabilities outside the ordinary course of business; (xvi) loan to, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination payor, except in the ordinary course of business consistent with past practicebusiness, entry into any other transaction with, any of its directors, officers and employees; (jxvii) entry into any transaction other than (A) in the ordinary course of business or (B) the Helix Transaction or the MMD Transaction described in Sections 6.18 and 7.2(m) respectively of this Agreement; (xviii) agreement, whether oral or written, by the Company or any Company Subsidiary to do any of its subsidiaries into the foregoing; or (xix) any (other change, event, development or amendment of circumstance affecting the Company or any existing) employmentCompany Subsidiary which, severance individually or termination agreement with any officerin the aggregate, (k) establishment, adoption, amendment or modification ofhas, or increase is reasonably likely to have, a Material Adverse Effect or which would reasonably be expected to prevent, hinder or materially delay the ability of benefits under, any plan that would constitute a the Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in to consummate the Stock Plantransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Orchid Biosciences Inc)
Absence of Certain Changes or Events. Since the Balance Sheet Date there have not been any events, changes, occurrences or state of facts that, individually or in the aggregate, have had or are reasonably likely to have a Company Material Adverse Effect. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed Company SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, Date (a) the Company and its subsidiaries Subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practicepractice through and including the date of this Agreement and (b) except as set forth in Section 3.6 of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries has taken any action described in Section 5.2(a) hereof that, if taken after the date hereof and prior to the Reverse Merger Effective Time without the prior written consent of Parent, would violate such provision. Without limiting the foregoing, except (i) as disclosed in the Filed Company SEC Documents and (ii) with respect to matters subsequent to the date of this Agreement, to the extent expressly permitted by Section 5.2(a), since the Balance Sheet Date there has not occurred any: (a) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (bA) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiariesSubsidiaries, except sales of inventory Vessels used in the Company’s offshore supply vessel business or other properties in the ordinary course of business consistent with past practice, (cB) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries Subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries Subsidiaries of any capital stock of the Company, (dC) split, combination or reclassification of any capital stock of the Company, (eD) change in financial or tax accounting methods, principles or practices by the Company or its subsidiariesSubsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (fE) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (gF) damage, destruction or loss (whether or not covered by insurance) of any material asset of the Company or any of its subsidiaries Subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased thereof, (G) granting by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries Subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) in effect as of the Company Disclosure ScheduleBalance Sheet Date, complete and correct copies of which have been made available to PurchaserParent, or any granting by the Company or any of its subsidiaries Subsidiaries to any employee other than an officer of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (iH) grant granting by the Company or any of its subsidiaries Subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) in effect as of the Company Disclosure ScheduleBalance Sheet Date, complete and correct copies of which have been made available to PurchaserParent, or any grant granting by the Company or any of its subsidiaries Subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (jI) entry by the Company or any of its subsidiaries Subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (kJ) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter definedother than a Multiemployer Plan) or (lK) acceleration of vesting of any Option, except acceleration previously provided for in option to acquire capital stock of the Stock PlanCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seabulk International Inc)
Absence of Certain Changes or Events. (a) Except (i) as disclosed in Schedule 3.6 of the Company Disclosure Schedule or the Company SEC Documents filed with the SEC after December 31, 1997 and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedulethis Agreement, or (iii) for the Transactionsexcept as contemplated by this Agreement, since the Balance Sheet DateDecember 31, 1997, each of the Company and its subsidiaries Subsidiaries have carried on and operated conducted their respective businesses in all material respects business only in the ordinary course of business consistent with past practice, and there has not occurred anybeen: (ai) event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (b) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock Capital Stock of the Company or any of its subsidiaries Subsidiaries; (ii) any split, combinations, reclassification or amendment of any term of any outstanding Capital Stock or other security of the Company or any of its Subsidiaries or (other than dividends by a direct issuance of Common Stock upon the exercise of any Company Options) any issuance or indirect wholly owned subsidiary the authorization of the issuance of any securities of the Company to or any of its parent)Subsidiaries, or other than in connection with the transactions contemplated hereby; (iii) any repurchase, redemption or other acquisition by the Company or any Subsidiary of its subsidiaries the Company of any capital stock outstanding Capital Stock or other securities of the Company or any Subsidiary of the Company, except as contemplated by the Stock Plans; (div) split, combination (A) any grant by the Company or reclassification any of its Subsidiaries to any officer of the Company or any of its Subsidiaries of any capital stock increase in compensation, except for increases in the ordinary course of business consistent with past practice or as required under employment or other agreements or benefit arrangements in effect as of December 31, 1997, or (B) any grant by the CompanyCompany or any of its Subsidiaries to any such officer of any increase in severance or termination pay, except as was required or provided for under any employment, severance, termination or other agreements or benefit arrangements in effect as of December 31, 1997; (ev) except as required by a change in financial or tax GAAP, any material change in accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a Subsidiaries, (vi) any material part of any improvement Leased by casualties affecting the Company or any of and its subsidiaries pursuant to the Real Property Lease and which damageSubsidiaries, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in as a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaserwhole, or any granting by the Company material loss, damage or destruction to any of its subsidiaries to any employee of any increase in compensationtheir properties or assets, except for normal increases in the ordinary course of business consistent with past practice, (i) grant whether covered by the Company insurance or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plannot.
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof of this Agreement (the "Company Filed SEC Documents"), (ii) as set forth or in Section 2.6 4.1(g) of the Company Disclosure Schedule, or (iii) for the Transactionssince December 31, since the Balance Sheet Date1998, the Company and has conducted its subsidiaries have carried on and operated their respective businesses in all material respects business only in the ordinary course of business consistent with past practice, and there has not occurred any: been (ai) event any event, occurrence or change that development of a state of circumstances which has had or would could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (bii) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of the Company's capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any outstanding shares of capital stock or other securities of the CompanyCompany or any of its subsidiaries, (diii) any split, combination or reclassification of any of its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (iv) (A) any granting by the Company or any of its subsidiaries to any current or former director, officer or employee of the CompanyCompany or any of its subsidiaries of any increase in compensation or benefits, except in the ordinary course of business consistent with past practice, (eB) any granting by the Company or any of its subsidiaries to any such director, officer or employee of any increase in severance or termination pay (including the acceleration in the exercisability of Company Options or in the vesting of Shares (or other property) or the provision of any tax gross-up), except as was required under employment, severance or termination agreements or plans in effect as of December 31, 1998 which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, or (C) any entry by the Company or any of its subsidiaries into any employment, deferred compensation, severance or termination agreement with any such current or former director, officer or employee, except in the ordinary course of business consistent with past practice, (v) any damage, destruction or loss, whether or not covered by insurance, that has had or could have a Material Adverse Effect, (vi) any change in financial or tax accounting methods, principles or practices by the Company or any of its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Lawgenerally accepted accounting principles, (fvii) material Tax election inconsistent with past practices or the settlement or compromise any amendment of any material Tax liability, (g) damage, destruction or loss term of any material asset outstanding security of the Company or any of its subsidiaries which materially affects the use subsidiaries, (viii) any incurrence, assumption or value thereof or a material part of any improvement Leased guarantee by the Company or any of its subsidiaries pursuant to of any material indebtedness for borrowed money other than in the Real Property Lease and which damageordinary course of business consistent with past practice, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that but in no event in the existence, level and coverage amount of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result more than $250,000 in a Company Material Adverse Effect)the aggregate, (hix) grant any creation or assumption by the Company or any of its subsidiaries to any officer of any increase Lien on any asset other than in compensationthe ordinary course of business consistent with past practice, except as was required under but in no event in the amount of more than $250,000 for any employment agreements set forth on Section 2.6(hone transaction or $500,000 in the aggregate, (x) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee making of any increase loan, advance or capital contributions to or investment in compensationany person other than (A) made in the ordinary course of business consistent with past practice, except but in no event in the amount of more than $100,000 for normal increases any one transaction or $150,000 in the aggregate and (B) investments in cash equivalents made in the ordinary course of business consistent with past practice, (ixi) grant any transaction or commitment made, or any contract or agreement entered into, by the Company or any of its subsidiaries relating to its assets or business (including the acquisition or disposition of any assets or the merger or consolidation with any person) or any relinquishment by the Company or any of its subsidiaries of any contract or other right, in either case, material to the Company or any of its subsidiaries, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement, but in no event representing commitments on behalf of the Company or any of its subsidiaries of more than $250,000 for any transaction or $500,000 for any series of transactions, (xii) any material labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its subsidiaries, which employees were not subject to a collective bargaining agreement at December 31, 1998, or any material lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees or (xiii) any agreement, commitment, arrangement or undertaking by the Company or any of its subsidiaries to perform any officer of any increase action described in clauses (or acceleration of vesting or payment ofi) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in through (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Planxii).
Appears in 1 contract
Absence of Certain Changes or Events. Except (i) as disclosed in Since the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Latest Balance Sheet Date, the Company has conducted its business only in the ordinary course and in a manner consistent with past practice and there has not been: (a) any damage, destruction or loss (whether or not covered by insurance) with respect to any material assets of the Company; (b) any change by the Company in its subsidiaries have carried on and operated their respective businesses accounting methods, principles or practices; (c) any declaration, setting aside or payment of any dividends or distributions in all material respects respect of shares of the capital stock of the Company or any redemption, purchase or other acquisition by the Company of any of its securities; (d) any increase in the benefits under, or the establishment or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing or other employee benefit plan, or any increase in the compensation payable or to become payable to directors, officers or employees of the Company, except for annual bonuses or merit increases in salaries or wages in the ordinary course of business and consistent with past practice; (e) any payment or other transfer of assets by the Company to any Stockholder, other than reimbursement or compensation payments in the ordinary course of business and there has consistent with past practice; (f) any revaluation by the Company of any of its assets, including the writing down or off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices; (g) any entry by the Company into any commitment or transaction material to the Company including, without limitation, incurring or agreeing to incur capital expenditures in excess of $50,000; (h) any incurrence of indebtedness for borrowed money other than trade payables not occurred any: exceeding $50,000 incurred in the ordinary course of business; (ai) event the termination of employment (whether voluntary or change that has had involuntary) of any officer or would key employee of the Company; or (j) any change, occurrence or circumstance having or reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effectmaterial adverse effect on the business, (b) sale operations, assets, financial condition, results of operations or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 2.14 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock prospects of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 1 contract
