Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December 31, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Flir Systems Inc), Agreement and Plan of Merger (Flir Systems Inc), Agreement and Plan of Merger (Icx Technologies Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe Disclosure Letter, since December 31, 2009 1996, the Company and its Significant Subsidiaries have conducted their respective businesses business only in the ordinary course of such business consistent with past practicepractices, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any Material Adverse Effect suffered by the Company or any of its Subsidiaries; (ii) any declaration, setting aside or payment of any dividend (other than regular quarterly cash dividends at a rate not in excess of $.46 per share of Common Stock) or other distribution (whether in cash, stock or property) with respect to any the capital stock of the Company or its Subsidiaries (other than wholly-owned Subsidiaries) or any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries; (iii) any material change in accounting principles, practices or methods; (iv) any entry into or amendment of any employment agreement with, or any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of compensation payable or to become payable by the Company or any of its SubsidiariesSubsidiaries to, other than any declaration setting aside their respective directors, officers or payment from a wholly owned Subsidiary employees, except increases in the ordinary course of business in accordance with the past practice of the Company Company; (v) any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of any bonus, insurance, pension or other employee benefit plan or arrangement covering any such directors, officers or employees, except increases in the ordinary course of business in accordance with the past practice of the Company, ; or (iivi) any purchase, redemption or other acquisition material revaluation by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities including, without limitation, write-downs of inventory or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization write-offs of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityaccounts receivable.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Procter & Gamble Co), Agreement and Plan of Merger (Procter & Gamble Co), Agreement and Plan of Merger (Tambrands Inc)
Absence of Certain Changes. Except as set forth in Section 4.15 of the Company Disclosure Schedule or as disclosed in the Company’s Form 10-Q for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe quarter ended March 27, 2006, since December 3126, 2009 2005, (a) there has not been an event which could reasonably be expected to have a Material Adverse Effect on the Company, (b) the business of the Company and its Subsidiaries have conducted their respective businesses subsidiaries has been conducted, in all material respects, only in the ordinary course a manner consistent with past practice, and (c) none of the Company or any of its subsidiaries has not suffered a incurred any liabilities (direct, contingent, or otherwise) or engaged in any transactions or entered into any agreement or commitment outside the ordinary course of business involving more than $100,000 individually or $500,000 in the aggregate. In addition, other than as previously disclosed in the SEC Reports or as set forth in Section 4.15 of the Company Material Adverse EffectDisclosure Schedule, and since December 3126, 2009 2005, there has not been (i) any declarationchange by the Company relating to Taxes or in its accounting methods, setting aside or payment principles, and practices, (ii) except as previously disclosed in writing to representatives of Parent, any reevaluation by the Company of any dividend asset (including, without limitation, any write-down of inventory or write-off of accounts receivable) other distribution than in the ordinary course of business consistent with past practice, (iii) any damage, destruction, or loss (whether in cash, stock or propertynot covered by insurance) with respect to any capital stock material property or asset of the Company or any of its Subsidiariessubsidiaries involving more than $100,000 individually or $500,000 in the aggregate, other than (iv) any declaration setting aside or payment from a wholly owned Subsidiary of failure by the Company to the Companyrevalue any asset in accordance with GAAP applied consistent with past practice, (iiv) except in the ordinary course of business, any purchase, redemption or other acquisition entry by the Company or any of its Subsidiaries subsidiaries into any commitment or transaction involving more than $100,000 individually or $500,000 in the aggregate, (vi) any declaration, setting aside, or payment of any shares of capital stock dividend 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 (other than acquisitions of Shares distribution in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification respect of any capital stock of the Company or any redemption, purchase, or other acquisition of any of its Subsidiaries securities, (vii) any increase in or establishment of any bonus, change in control payments, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase, or other employee benefit plan, or any issuance other increase in the compensation payable or to become payable to any director or officer of the authorization Company; provided, however, that nothing in this Section 4.15 shall require the listing in Section 4.15 of the Company Disclosure Schedule of Options or restricted stock units otherwise disclosed in Section 4.03(a) of the Company Disclosure Schedule or of any issuance item disclosed in Section 4.11 of the Company Disclosure Schedule, (viii) any incurrence, payment, discharge, or satisfaction of any indebtedness, claim, liability, or obligation other securities than in respect of, in lieu the ordinary course of or in substitution for shares of their respective capital stockbusiness consistent with past practice, (ivix) any damage, destruction or loss to imposition of any Lien on any asset or property of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effectsubsidiaries other than in the ordinary course of business consistent with past practice, (vx) any change in accounting methodssale, principles transfer, or practices by the Company materially affecting its assets, liabilities other disposition of any properties or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any subsidiaries involving more than $100,000 individually or $500,000 in the aggregate except in the ordinary course of its Subsidiariesbusiness consistent with past practice, (xi) any entry into, or change or modification to, any material Tax election Affiliate Transaction, or change (xii) any authorization or agreement to take any of the actions described in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythis Section 4.15.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Main Street Restaurant Group, Inc.), Agreement and Plan of Merger (Main Street Acquisition CORP), Agreement and Plan of Merger (Main Street Restaurant Group, Inc.)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSection 4.06 of the Disclosure Letter, since December May 31, 2009 2000, (a) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (b) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except for the negotiation and the Company has not suffered a Company Material Adverse Effect, execution and since December 31, 2009 delivery of this Agreement and (c) 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 capital stock of the Company Shares or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock (except any obligation of the Company under the Stock Option Plans to accept Shares in connection with the exercise of Existing Stock Options, including in satisfaction of withholding tax obligations) or any other securities of in, or other ownership interests in, the Company or any of its Subsidiaries or any optionsamendment (or agreement to amend) the terms of any such shares, warrants, calls securities or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonownership interests), (iiiii) any splitentry into any employment, combination change in control, retention, incentive or reclassification deferred compensation or severance agreement, plan or arrangement with or for the benefit of, or any increase in the rate or modification in the terms (including any acceleration of the right to receive or the timing of payment) of any capital stock of compensation payable or to become payable by the Company or any of its Subsidiaries or to, 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 stockdirectors, officers or employees, except base salary, guaranteed draw or hourly wage increases to employees who are not members of the executive committee of the Company or directors of the Company that have been granted in the ordinary course of business in accordance with its customary past practices, (iii) any increase in the rate of compensation or benefits payable or accruing under, or, modification of the terms (including any acceleration of the right to receive payment) of, any existing Plan (as defined in Section 4.09) (except as disclosed in the Company SEC Reports) or any adoption or implementation of any new Plan, in any such case, for or with any such directors, officers or employees, (iv) any damageaction by the Company which, destruction or loss to if taken after the date hereof, would constitute a breach of any asset of the Company or any clauses of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse EffectSection 6.01 hereof, (v) any change by the Company in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change changes in GAAP or GAAP, (vi) except any labor dispute or other employment related problem, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to depreciation and amortization of the assets of such employees, (vii) any revaluation by the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise Subsidiaries of any of their respective assets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice, (viii) any entry into any agreement, commitment or transaction by the Company which is material income Tax liabilityto the Company and its Subsidiaries taken as a whole or (ix) any commitment to do any of the foregoing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Deutsche Bank Ag\), Agreement and Plan of Merger (National Discount Brokers Group Inc), Agreement and Plan of Merger (Deutsche Bank Ag\)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection the SEC Reports (as defined in Section 4.05) filed with this Agreement and except as expressly permitted the SEC prior to the date hereof or contemplated by this Agreementin Section 4.04 of the Disclosure Letter, since December July 31, 2009 1997, (i) the Company and its Subsidiaries have not suffered any Material Adverse Effect or any change, condition, event or development that could reasonably be expected to have a Material Adverse Effect, (ii) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, except in connection with the negotiation and the Company has not suffered a Company Material Adverse Effectexecution and delivery of this Agreement, and since December 31, 2009 (iii) there has not been (ia) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company Shares or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or any other securities in, or other ownership interests in, the Company or any of its Subsidiaries; (b) any entry into any employment agreement or severance compensation agreement with, or any increase in the rate or terms (including any acceleration of the right to receive payment), of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases to employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary past practices; (c) any increase in the rate or terms (including any acceleration of the right to receive payment) of any Plan (as hereinafter defined) or any optionsother bonus, warrantsseverance, calls or rights to acquire such shares insurance, pension or other securities employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees; (d) any action by the Company which, if taken after the date hereof, would constitute a breach of any of the clauses of Section 6.01 hereof; (e) any change by the Company in accounting methods, principles or practices except as required by changes in United States generally accepted accounting principles; (f) any labor dispute, other than acquisitions routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of Shares in connection the Company or any Subsidiary, which employees were not then subject to a collective bargaining agreement or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with the surrender of Shares by holders of Options, RSUs or Warrants in order respect to pay the exercise price thereof or the taxes thereon), such employees; (iiig) any split, combination or reclassification of any capital stock of revaluation by the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stockassets, including write-downs of inventory or of accounts receivable other than in the ordinary course of business consistent with past practice; or (ivh) any damageentry into any agreement, destruction commitment or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices transaction by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect which is material to depreciation and amortization of the assets of the Company or any and its Subsidiaries taken as a whole other than in the ordinary course of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitybusiness consistent with past practice.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Dep Corp), Agreement and Plan of Merger (Henkel Acquisition Corp Ii), Agreement and Plan of Merger (Dep Corp)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement Section 6.8 of the -------------------------- ----------- Disclosure Letter or as disclosed in the Company Reports, during the period from December 31, 1999 to and except as expressly permitted or contemplated by including the date of this Agreement, since December 31, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course of such business consistent with past practicepractices, and there have not been (a) any event, change, occurrence or development of a state of fact that has or could reasonably be expected to have, individually or in the Company has not suffered aggregate, a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (ib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries; (d) any material change in accounting principles, practices or methods; (e) any entry into any employment agreement with, or any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of compensation payable or to become payable by the Company or any of its SubsidiariesSubsidiaries to, other than or forgiveness of any declaration setting aside indebtedness owed to the Company by, their respective directors, officers or payment from a wholly owned Subsidiary employees, except for regularly scheduled employee raises in the ordinary course of business consistent with the Company's past practices or raises or forgiveness of indebtedness that, in the case of executive officers, have been approved by the compensation committee of the Company Board of Directors prior to the Company, date hereof in the ordinary course of business consistent with the committee's past practices; (iif) any purchaseincrease in the rate or terms (including, redemption without limitation, any acceleration of the right to receive payment) of any bonus, insurance, pension or other acquisition employee benefit plan or arrangement covering any such directors, officers or employees, except, in the case of employees, increases occurring in the ordinary course of business consistent with the Company's past practices; (g) any revaluation by the Company or any of its Subsidiaries of any shares material amount of capital stock their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practices; (h) any other securities material adverse change in the business relationship with any material customer, distributor or supplier of the Company or any of its Subsidiaries Subsidiaries; or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiii) any split, combination or reclassification action of the type described in Sections 8.1 ------------ that had such action been taken after the date of this Agreement would be in violation of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySection.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Hughes Electronics Corp), Agreement and Plan of Merger (Telocity Delaware Inc), Agreement and Plan of Merger (Telocity Delaware Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by Since September 30, 2000 (the "Company Balance Sheet Date"), through the date of this Agreement, since December 31, 2009 Company and each of the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any change, event or condition (whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Material Adverse Effect on Company; (ii) any acquisition, sale or transfer of any material asset of Company or any Company Subsidiary; (iii) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company or any revaluation by Company of any of its assets; (iv) any declaration, setting aside or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to any capital stock the shares of the Company Company, or any of its Subsidiariesdirect or indirect redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption purchase or other acquisition by the Company or any Company Subsidiary of any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, respectively; (v) any change in accounting methodsmaterial contract entered into by Company or any Company Subsidiary, principles other than as provided to Parent, or practices any material amendment or termination of, or default under, any material contract to which Company or any Company Subsidiary is a party or by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or which any of them are bound; (vi) except any amendment or change to the certificate of incorporation or bylaws of Company or any Company Subsidiary; (vii) any increase in or modification of the compensation or benefits payable or to become payable by Company or any Company Subsidiary to any of their respective directors, employees or consultants other than, with respect to depreciation non-officer employees and amortization consultants only, any increases in the ordinary course of the assets of the business consistent with past practice; or (viii) any agreement by Company or any Company Subsidiary to do any of its Subsidiaries, any material Tax election or change the things described in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythe preceding clauses (i) through (vii).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Best Buy Co Inc), Agreement and Plan of Merger (Musicland Stores Corp), Agreement and Plan of Merger (Best Buy Co Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December Since March 31, 2009 2001 (the "Company Balance Sheet Date"), the Company and has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company there has not suffered occurred: (i) any change, event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in, a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (iii) any declarationacquisition, setting aside sale or payment transfer of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock material asset of the Company or any of its Subsidiaries, Subsidiaries other than in the ordinary course of business and consistent with past practice; (iii) any declaration change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its or any of its Subsidiaries' assets; (iv) any declaration, setting aside aside, or payment from of a wholly owned Subsidiary dividend or other distribution with respect to the shares of the Company to the Company, (ii) or any purchasedirect or indirect redemption, redemption purchase or other acquisition by the Company of any of its shares of capital stock other than the purchase of unvested shares upon employment or service termination; (v) any entering into by the Company or any of its Subsidiaries of any shares of capital stock material contract or agreement, or any material amendment or termination of, other securities than in the ordinary course of business, or default by the Company or any of its Subsidiaries under, any material contract or any options, warrants, calls or rights agreement to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of which the Company or any of its Subsidiaries is a party or any issuance or by which it is bound (or, to the authorization Knowledge of any issuance of the Company, by any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, party thereto); (ivvi) any damage, destruction amendment or loss change to the Certificate of Incorporation or Bylaws; or (vii) any asset increase in or modification of the compensation or benefits payable, or to become payable, by the Company or to any of its Subsidiariesdirectors, whether consultants or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in the ordinary course of business and consistent with the Company's past practices. The Company has not covered by insuranceagreed since March 31, that would have a Company Material Adverse Effect2001 to effect any changes, events, or conditions or take any of the actions described in the preceding clauses (vi) through (vii) and is not currently involved in any change negotiations to do any of the things described in accounting methods, principles or practices the preceding clauses (i) through (vii) (other than negotiations with Synopsys and its representatives regarding the transactions contemplated by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySynopsys Agreement).
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Mentor Graphics Corp), Agreement and Plan of Merger and Reorganization (Ikos Systems Inc), Agreement and Plan of Merger and Reorganization (Mentor Graphics Corp)
Absence of Certain Changes. Except for liabilities incurred Since December 31, 1996, except -------------------------- as disclosed in connection the Company SEC Documents filed with the Commission prior to the date of this Agreement and except or as expressly permitted or specifically contemplated by this AgreementAgreement or as set forth in Section 3.9 of the Company Disclosure Schedule, since December 31, 2009 (a) the Company and its Material Subsidiaries have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 (b) there has not been (i) any change, event, occurrence or circumstance in the business, operations, properties, financial condition or results of operations of the Company or any of its subsidiaries which, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect (except for changes, events, occurrences or circumstances (A) with respect to general economic or industry conditions or (B) arising as a result of the transactions contemplated hereby), (ii) any material change by the Company in its accounting methods, principles or practices, (iii) any declaration, setting aside or payment of any dividend or other distribution (whether or capital return in cash, stock or property) with respect to of any capital stock of, or other equity interest in, the Company or any of its subsidiaries, (iv) any material revaluation for financial statement purposes by the Company or any of its subsidiaries of any asset (including, without limitation, any writing down of the value of any property, investment or asset or writing off of notes or accounts receivable), (v) other than payment of compensation for services rendered to the Company or any of its subsidiaries in the ordinary course of business consistent with past practice or the grant of Company Options as described in (and in amounts consistent with) Section 3.2 or any transactions described in Section 3.12 of the Company Disclosure Schedule, any material transactions between the Company or any of its subsidiaries, on the one hand, and any (A) officer or director of the Company or any of its Subsidiariessubsidiaries, other than any declaration setting aside (B) record or payment from a wholly owned Subsidiary beneficial owner of five percent (5%) or more of the Company to voting securities of the Company, or (iiC) affiliate of any purchasesuch officer, redemption director or beneficial owner, on the other hand, or (vi) other than pursuant to the terms of the plans, programs or arrangements specifically referred to in Section 3.12 or in the ordinary course of business consistent with past practice, any increase in or establishment of any bonus, insurance, welfare, 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 acquisition by the Company or any of its Subsidiaries of any shares of capital stock employee benefit plan, or any other securities increase in the compensation payable or to become payable to any employees, officers, directors or consultants of the Company or any of its Subsidiaries subsidiaries, which increase or any optionsestablishment, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of individually or in substitution for shares of their respective capital stockthe aggregate, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have will result in a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.
Appears in 3 contracts
Samples: Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Renaissance Hotel Group N V)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince the Company Balance Sheet Date, since December 31, 2009 each of the Company and each Subsidiary has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 (a) there has not been occurred a Material Adverse Effect with respect to the Company and its Subsidiaries, taken as a whole, (ib) neither the Company nor any declaration, setting aside Subsidiary has made or payment entered into any Contract or letter of any dividend or other distribution (whether in cash, stock or property) intent with respect to any capital stock acquisition, sale or transfer of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any Subsidiary (other than the sale or nonexclusive license of Company Products to its customers in the ordinary course of its Subsidiariesbusiness consistent with its past practice), (c) except as required by GAAP, there has not occurred any change in accounting methods or practices (including any change in depreciation or amortization policies or rates or revenue recognition policies) by the Company or any Subsidiary or any revaluation by the Company of any of its or any Subsidiary’s assets, (d) there has not occurred any declaration, setting aside, or payment of a dividend or other distribution with respect to any securities of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its securities, or any change in any rights, preferences, privileges or restrictions of any of its outstanding securities, (e) there has not occurred any material default under any Material Contract to which the Company or any Subsidiary is a party or by which it is, or any of its assets and properties are, bound, (f) other than as set forth in Schedule 2.6(f) of the Company Disclosure Letter, there has not occurred any amendment or change to the articles or bylaws or other equivalent organizational or governing documents of the Company or any Subsidiary, (g) other than as set out in Schedule 2.6(g) of the Company Disclosure Letter, there has not occurred any increase in or modification of the compensation or benefits payable or to become payable by the Company or any Subsidiary to any of its directors, officers, employees or consultants (other than increases in the base salaries of employees who are not officers in an amount that does not exceed 10% of such base salaries), any material modification of any “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and Treasury Regulation promulgated thereunder, or any new loans or extension of existing loans to any such directors, officers, employees or consultants (other than routine expense advances to employees of the Company or any Subsidiary consistent with past practice), and neither the Company nor any Subsidiary has entered into any Contract to grant or provide (nor has granted any) severance, acceleration of vesting or other similar benefits to any such Persons, (h) other than as set forth in Schedule 2.6(h) of the Company Disclosure Letter, there has not occurred the execution of any employment agreements or service Contracts or the extension of the term of any existing employment agreement or service Contract with any Person in the employ or service of the Company or any Subsidiary, (i) other than as set forth in Schedule 2.6(i) of the Company Disclosure Letter, there has not occurred any change in title, office or position, or material reduction in the responsibilities of, or change in identity with respect to the management, supervisory or other key personnel of the Company or any Subsidiary, any termination of employment of any such employees, or any labor dispute or claim of unfair labor practices involving the Company or any Subsidiary, (j) neither the Company nor any Subsidiary has incurred, created or assumed any Encumbrance (other than a Permitted Encumbrance) on any of its assets or properties, any Liability for borrowed money or any Liability as guaranty or surety with respect to the obligations of any other Person, (k) neither the Company nor any Subsidiary has paid or discharged any Encumbrance or Liability which was not shown on the Company Balance Sheet or incurred in the ordinary course of business consistent with past practice since the Company Balance Sheet Date, (l) neither the Company nor any Subsidiary has incurred any Liability to its directors, officers or shareholders (other than Liabilities to pay compensation or benefits in connection with services rendered in the ordinary course of business, consistent with past practice), (m) other than as set out in Schedule 2.6(m) of the Company Disclosure Letter, neither the Company nor any Subsidiary has made any deferral of the payment of any accounts payable other than in the ordinary course of business, consistent with past practice, or in an amount in excess of $100,000, or given any discount, accommodation or other concession other than in the ordinary course of business, consistent with past practice, in order to accelerate or induce the collection of any receivable, (n) neither the Company nor any Subsidiary has made any material change in the manner in which it extends discounts, credits or warranties to customers or otherwise deals with its customers, (o) there has been no material damage, destruction or loss, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by affecting the Company materially affecting its assets, liabilities properties or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets business of the Company or any of its SubsidiariesSubsidiary, and (p) there has not occurred any announcement of, any material Tax election or change in such election, any change in material method of accounting for Tax purposes negotiation by or any settlement entry into any Contract by the Company or compromise any Subsidiary to do any of any material income Tax liabilitythe things described in the preceding clauses (a) through (o) (other than negotiations and agreements with Acquiror and its representatives regarding the transactions contemplated by this Agreement).
Appears in 3 contracts
Samples: Share Purchase Agreement (Sonosite Inc), Share Purchase Agreement (Sonosite Inc), Share Purchase Agreement (Sonosite Inc)
Absence of Certain Changes. Except From December 31, 1997 until the date hereof, (a) there has not occurred any event, change or development which has had or would be reasonably likely to have a Company Material Adverse Effect and (b) except as disclosed in the Company SEC Documents or Section 2.8 of the Company Disclosure Schedule, and except for liabilities incurred in connection with the performance of this Agreement and except as expressly permitted or the transactions contemplated by this Agreementhereby, since December 31, 2009 the Company and its Subsidiaries have have: (i) conducted their respective businesses its business and operations only in the ordinary course of business consistent with past practicepractices; (ii) used reasonable efforts to preserve intact the business organizations, rights, licenses, permits and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 capital stock franchises of the Company and its Subsidiaries, maintain their existing relationships with customers, suppliers and other Persons having business dealings with them and keep available the services of its officers and employees; (iii) used reasonable efforts to keep in full force and effect adequate insurance coverages and maintain and keep its properties and assets in good repair, working order and condition, normal wear and tear excepted; (iv) not amended or modified its articles of association, certificate of incorporation, by-laws or comparable governing documents; (v) not authorized for issuance, issued, sold, granted, delivered, pledged or encumbered or agreed or committed to issue, sell, grant, deliver, pledge or encumber (to or with any party other than the Company and 7 any of its wholly-owned Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock any class or any other securities series of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance other equity or voting security or equity or voting interest of the authorization Company or any of its Subsidiaries, any securities convertible into or exercisable or exchangeable for any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, securities or interests (other than issuances of Company Shares (i) upon exercise of outstanding Stock Options granted to directors, officers, employees and consultants of the Company in accordance with the Option Plans as currently in effect and (ii) pursuant to conversion of the TOPrS); (vi) except for conversion of the TOPrS in accordance with their terms, (i) split, combined or reclassified any shares of its capital stock or issued or authorized or proposed the issuance of any other securities in respect of, in lieu of of, or in substitution for for, shares of their respective its capital stock, (ivii) in the case of the Company or any damageSubsidiary of the Company that is not wholly-owned by the Company, destruction declared, set aside or loss paid any dividends on, or made other distributions in respect of, any capital stock or (iii) repurchased, redeemed or otherwise acquired, or agreed or committed to repurchase, redeem or otherwise acquire, any asset shares of capital stock or other equity or debt securities or equity interests of the Company or any of its Subsidiaries (other than to fulfill its obligations under the Option Plans as currently in effect); (vii) not amended or otherwise modified the terms of any Stock Options or any Option Plan the effect of which was to make such terms more favorable to the holders thereof or Persons eligible for participation therein, or reserved any additional Company Shares for issuance under any such Plan; (viii) except as required by law or existing written agreements, entered into, adopted or materially amended any incentive, compensation, option or severance plan or arrangement (including, without limitation, any Benefit Plan) for the benefit or welfare of any current or former director, officer or employee of the Company or any of its Subsidiaries, whether or (except for normal increases in the ordinary course of business that are consistent with past practices) increased the compensation or benefits of any persons or pay any benefit not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change any existing plan and arrangement; (ix) not acquired or agreed to acquire (by merger, consolidation, acquisition of stock or assets or otherwise) from any Person, any corporation, partnership, joint venture, association or other business organization or division thereof or otherwise acquired or agreed to acquire any assets of another Person other than the purchase of assets in GAAP the ordinary course of business consistent with past practice or in an aggregate amount of less than $5,000,000; (vix) except with respect not sold, leased, licensed, encumbered or otherwise disposed of, or agreed to depreciation and amortization of the sell, lease, license, encumber or otherwise dispose of, any material properties or assets of the Company or any of its Subsidiaries, except as intercompany transactions between the Company and any of its wholly-owned Subsidiaries or in transactions with any other Person in the ordinary course of business, consistent with past practice and in an aggregate amount of less than $5,000,000. (xi) not made any material Tax election or change in such electionany of its accounting or financial reporting methods, principles or practices, except as may be required by GAAP; (xii) except in the ordinary course of business consistent with past practices, not amended, modified or terminated any change Material Contract required to be listed in Section 2.16 of the Company Disclosure Schedule (other than in response to Section 2.16(a)(iii) thereof) or waived, released or assigned any material method rights or claims thereunder; (xiii) not adopted a plan of accounting for Tax purposes complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any settlement of its Subsidiaries; (xiv) not made any loans, advances or compromise capital contributions to any Person other than as required by existing agreements or in the ordinary course of any material income Tax liability.business consistent with past practice; or 8
Appears in 3 contracts
Samples: Acquisition Agreement (Abb Transportation Participations B V), Acquisition Agreement (Elsag Bailey Process Automation N V), Acquisition Agreement (Elsag Bailey Process Automation N V)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and Since November 30, 1998, except as expressly permitted disclosed in Section 7.8 of the Disclosure Schedule there has not been any: (i) change in the assets, liabilities, sales, income, or contemplated by this Agreement, since December 31, 2009 business of the Company and or in its Subsidiaries have conducted their respective businesses only relationships with suppliers, customers, or lessors, other than changes that were both in the ordinary course consistent with past practiceof business and have not caused, and either in any case or in the aggregate, a Material Adverse Effect on the Company; (ii) acquisition or disposition by the Company has of any material asset or property; (iii) damage, destruction or loss, whether or not suffered a Company Material Adverse Effectcovered by insurance, materially and since December 31adversely affecting, 2009 there has not been either in any case or in the aggregate, the business or any material property of the Company; (iiv) any declaration, setting aside or payment of any dividend or any other distribution distributions in respect of any shares of capital stock of the Company; (whether in cash, stock or propertyv) with respect to issuance of any shares of the capital stock of the Company or any of its Subsidiariesdirect or indirect redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company of any such capital stock; (vi) loss of the services of any officer or key employee or consultant, or any increase in the compensation, pension, or other benefits payable or to become payable by the Company to any of its Subsidiaries officers or key employees or consultants, or any bonus payments or arrangements made to or with any of them; (vii) forgiveness or cancellation of any shares of capital stock debts or any other securities of claims by the Company or any waivers of any rights; (viii) entry by the Company into any transaction with any of its Subsidiaries Affiliates; (ix) incurrence by the Company of any obligations or any optionsliabilities, warrantswhether absolute, calls accrued, contingent or rights otherwise (including without limitation liabilities as guarantor or otherwise with respect to acquire such shares or other securities (obligations of others), other than acquisitions obligations and liabilities incurred in the ordinary course of Shares business with persons other than Affiliates of the Company; (x) incurrence or imposition of any Lien on any of the assets, tangible or intangible, of the Company; or (xi) discharge or satisfaction by the Company of any Lien or payment by the Company of any obligation or liability (fixed or contingent) other than (A) current liabilities included in the November 30, 1998 Balance Sheet, (B) current liabilities to persons other than Affiliates of the Company incurred since November 30, 1998 in the ordinary course of business, and (C) current liabilities incurred in connection with the surrender of Shares by holders of Options, RSUs or Warrants transactions contemplated hereby and disclosed in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock Section 7.8 of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityDisclosure Schedule.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Leukosite Inc), Agreement and Plan of Merger and Reorganization (Leukosite Inc), Agreement and Plan of Merger and Reorganization (Leukosite Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted the Company Reports or contemplated by this Agreementin Section 4.9 of the Company Disclosure Letter, since December March 31, 2009 1999, the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course of such business consistent with past practicepractices, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any event or state of fact that, individually or in the aggregate, would have a Material Adverse Effect; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any its capital stock or any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries; (iii) any change in accounting principles, other than practices or methods; (iv) any declaration setting aside entry into any employment agreement with, or payment from a wholly owned Subsidiary any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of compensation payable or to become payable by the Company or any of its Subsidiaries to, their respective directors, officers or employees, except increases for employees who are not officers or directors occurring in the ordinary course of business in accordance with their customary practices; (v) any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of any bonus, insurance, pension or other employee benefit plan or arrangement covering any such directors, officers or employees, except increases for employees who are not officers or directors occurring in the ordinary course of business in accordance with its customary practices; (vi) any entry into any Contracts or transaction by the Company or any Subsidiary which is material to the Company, Company and its Subsidiaries taken as a whole whether or not in the ordinary course of business; (iivii) any purchase, redemption or other acquisition revaluation by the Company or any of its Subsidiaries of any shares of capital stock their respective assets, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practices; or (viii) any other securities of action by the Company or any which if taken after the date hereof would constitute a breach of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities Section 6.2(b) hereof (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonSections 6.2(b)(ii) and 6.2(b)(xiii), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (M Acquisition Corp), Agreement and Plan of Merger (Marcam Solutions Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince June 30, since December 311999 (the "Acquiror Balance Sheet Date"), 2009 the Company and Acquiror has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that would have or might reasonably be expected to result in, a Company Material Adverse EffectEffect to Acquiror; (ii) any acquisition, sale or transfer of any material asset of Acquiror or any of its subsidiaries (vother than Target) other than in the ordinary course of business and consistent with past practice; (iii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or (viamortization policies or rates) except with respect to depreciation and amortization by Acquiror or any revaluation by Acquiror of the assets any of the Company its or any of its Subsidiariessubsidiaries' (other than Target's) assets; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of Acquiror, or any direct or indirect redemption, purchase or other acquisition by Acquiror of any of its shares of capital stock, other than in the ordinary course of business and consistent with past practice; (v) any material contract entered into by Acquiror or any of its subsidiaries (other than Target), other than in the ordinary course of business and as provided to Target, or any material amendment or termination of, or default under, any material Tax election contract to which Acquiror or any of its subsidiaries (other than Target) is a party or by which it is bound; (vi) any amendment or change to the articles of incorporation or bylaws, except in such electionconnection with authorizing additional shares that may be required to be issued in connection with this Agreement or the transactions contemplated hereby, including, but not limited to, the assumption of the Target's Stock Option Plans; or (vii) any change increase in material method or modification of accounting for Tax purposes the compensation or benefits payable or to become payable by Acquiror to any settlement of its directors or compromise employees. Acquiror has not agreed since the Acquiror Balance Sheet Date to do any of the things described in the preceding clauses (i) through (vii) and is not currently involved in any material income Tax liabilitynegotiations to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with Target and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Ophthalmic Imaging Systems Inc), Agreement and Plan of Reorganization (Premier Laser Systems Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by From December 31, 2002 to the date of this Agreement, since December 31, 2009 the Company and Xxxxxx has conducted its Subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any event or occurrence that has had or is reasonably likely to have a Xxxxxx Material Adverse Effect; (ii) any material change by Xxxxxx or any of its Subsidiaries, when taken as a whole, in any of its accounting methods, principles or practices or any of its tax methods, practices or elections; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to of any capital stock of the Company Xxxxxx or any redemption, purchase or other acquisition of any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, securities; (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiiiv) any split, combination or reclassification of any capital stock of the Company Xxxxxx 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 that capital stock, ; (ivv) any damagegranting, destruction or loss any commitment or promise to grant, by Xxxxxx or any of its Subsidiaries to any asset officer of Xxxxxx or any of its Subsidiaries of (A) any increase in compensation, except in the ordinary course of business, including in connection with promotions, consistent with prior practice or as required by employment agreements in effect as of the Company date of the consolidated balance sheet of Xxxxxx and its Subsidiaries included in the Xxxxxx Reports required or (B) any increase in severance or termination pay, except as part of a standard employment package to any person promoted or hired, but not including the five most highly compensated executive officers of Xxxxxx, or as employment, severance or termination agreements in effect as of date of the consolidated balance sheet of Xxxxxx and its Subsidiaries included in the Xxxxxx Reports required; (vi) any entry by Xxxxxx or any of its Subsidiaries into any employment, severance or termination agreement with any officer of Xxxxxx or any of its Subsidiaries; (vii) any increase in, or any commitment or promise to increase, benefits payable or available under any pre-existing Xxxxxx Benefit Plan (as defined in Section 5.11), except in accordance with the pre-existing terms of that Xxxxxx Benefit Plan, any establishment of, or any commitment or promise to establish, any new Xxxxxx Benefit Plan, any amendment of any existing stock options, stock appreciation rights, performance awards or restricted stock awards or, except in accordance with and under pre-existing compensation policies, any grant, or any commitment or promise to grant, any stock options, stock appreciation rights, performance awards, or restricted stock awards; (vii) any damage to or any destruction or loss of physical properties Xxxxxx or any of its Subsidiaries owns or uses, whether or not covered by insurance, that would in the aggregate have had or reasonably could be expected to have a Company Xxxxxx Material Adverse Effect, ; or (vviii) any change in accounting methods, principles or practices reevaluations by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company Xxxxxx or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise Subsidiaries of any of their assets (other than any ceiling test writedown related to adjusting the fair value of assets as a result of the consideration to be paid pursuant to this Agreement) which, in accordance with generally accepted accounting principles, Xxxxxx will reflect in its consolidated financial statements, including any impairment of assets, and which in the aggregate are material income Tax liabilityto them. Schedule 5.9 of the Xxxxxx Disclosure Letter sets forth all severance and termination payments which will be payable upon the consummation of the Merger and the termination of any employees of Xxxxxx.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Miller Exploration Co), Agreement and Plan of Merger (Edge Petroleum Corp)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except the SEC Documents (as expressly permitted --- -------------------------- defined in Section 2.6 below) or as contemplated by this AgreementAgreement or as set forth in Schedule 2.5, since December March 31, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice1998, no event has occurred, and the Company has not suffered no ------------ circumstances exist, that could reasonably be expected to result in a Company Material Adverse Effect. Except as disclosed in the Company's filings and reports under the Exchange Act or as set forth in Schedule 2.5, and since December March 31, 2009 1998, there ------------ has not been (ia) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock Common Stock or any other equity securities of the Company; (b) any entry into any agreement, commitment or transaction by the Company or any of its Subsidiaries subsidiaries which is material to the Company and its subsidiaries taken as a whole, except agreements, commitments or any optionstransactions in the ordinary course of business, warrants, calls or rights to acquire such shares or other securities consistent with prior practice; (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiic) any split, combination or reclassification of any the Company's capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective its capital stock, ; (ivd)(i) any damage, destruction granting by the Company or loss any of its subsidiaries to any asset officer or key employee of the Company or any of its Subsidiariessubsidiaries of any increase in compensation, 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 SEC Documents, (ii) any granting by the Company or any of its subsidiaries to any such officer or key employee of any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the SEC Documents, or (iii) any entry by the Company or any of its subsidiaries into any employment, severance or termination agreement with any such officer or key employee; (e) any damage, destruction or loss, whether or not covered by insurance, that would could reasonably be expected to have a Company Material Adverse Effect, ; or (vf) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businessesbusiness, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of generally accepted accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityprinciples.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Canisco Resources Inc), Securities Purchase Agreement (Morse Partners LTD)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December Since January 31, 2009 2002 (the Company and "Measurement Date"), Involve has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Material Adverse Effect to Involve; (ii) any acquisition, sale or transfer of any asset of Involve that would have a Company Material Adverse Effect, Effect other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Involve or any revaluation by Involve of any of its assets; (iv) any declaration, liabilities setting aside, or businessespayment of a dividend or other distribution with respect to the shares of Involve or any direct or indirect redemption, except insofar purchase or other acquisition by Involve of any of its shares of capital stock; (v) any Material Contract (as may such term is defined in Section 3.11) entered into by Involve, other than in the ordinary course of business and as provided to Merger Sub, or any amendment that would have been required a Material Adverse Effect or termination of, or default under, any Material Contract to which Involve is a party or by a change in GAAP or which it is bound; (vi) except with respect any amendment or change to depreciation and amortization the charter documents of Involve; (vii) any increase in or modification of the assets of the Company compensation or benefits paid, payable or to become payable by Involve to any of its Subsidiariesdirectors, officers or employees; (viii) any material Tax election reduction in the sales of Involve to or significant detrimental change in such electionterms with any customer year-to-date through October 31, 2002 as compared to the same time period last year or (ix) any change negotiation or agreement by Involve to do any of the things described in material method the preceding clauses (i) through (viii) (other than negotiations with Merger Sub, Kintera and their representatives regarding the transactions contemplated by this Agreement). As of accounting for Tax purposes or any settlement or compromise Closing, there will be no accrued but unpaid dividends on shares of any material income Tax liabilityInvolve's capital stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Kintera Inc), Agreement and Plan of Merger and Reorganization (Kintera Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December Since January 31, 2009 1999 (the Company and "Online Balance Sheet Date"), Online has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred except as otherwise disclosed in the Online SEC Documents: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that or would have reasonably be expected to result in, a Company Material Adverse EffectEffect on Online; (ii) any acquisition, sale or transfer of any material asset of Online or any of its subsidiaries other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or (viamortization policies or rates) except with respect to depreciation and amortization by Online or any revaluation by Online of the assets any of the Company its or any of its Subsidiariessubsidiaries' assets; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of Online, or any direct or indirect redemption, purchase or other acquisition by Online of any of its shares of capital stock; (v) any material contract entered into by Online or any of its subsidiaries, other than in the ordinary course of business and as provided to Omega, or any material amendment or termination of, or material default under, any material Tax election contract to which Online or any of its subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Articles of Incorporation or Bylaws of Online; (vii) any material increase in such electionor material modification of the compensation or benefits payable or to become payable by Online to any of its directors, officers or employees except in the case of employees (other than officers) increases in the ordinary course of business consistent with past practices; (viii) any material change in material method the interest rate risk management and hedging policies, procedures or practices of accounting for Tax purposes Online or any settlement of its subsidiaries, or compromise any failure to comply with such policies, procedures and practices; or (ix) any negotiation or agreement by Online or any of its subsidiaries to do any material income Tax liabilityof the things described in the preceding clauses (i) through (viii) (other than negotiations with Omega and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Onlinetradinginc Com Corp), Agreement and Plan of Merger and Reorganization (Onlinetradinginc Com Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December 31, 2009 2007 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 2007 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs Company Options or Warrants in order to pay the exercise price thereof or the taxes thereonthereof), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) (A) any granting by the Company or any of its Subsidiaries to any Specified Participant of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any Specified Participant not previously receiving or entitled to receive such type of compensation or benefit, except as was required under any agreement or Benefit Plan in effect as of December 31, 2007, (B) any granting by the Company or any of its Subsidiaries to any director, officer, employee or consultant of any right to receive, or any increase in, change of control, retention, severance or termination compensation or benefits, (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 Specified Participant, on the other hand, or (2) any agreement between the Company or any of its Subsidiaries, on the one hand, and any Specified Participant, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Specified Benefit Agreements”), (D) any payment of any compensation or benefit under, or the grant of any award under, any bonus, incentive, performance or other compensation plan or arrangement, Specified Benefit Agreement, Equity Plan or Benefit Plan, except as required to comply with applicable Law or any Specified Benefit Agreement, Equity Plan or Benefit Plan in effect as of December 31, 2007, (E) the taking of any action to fund or in any other way secure the payment of compensation or benefits under any Equity Plan, Benefit Plan or Specified Benefit Agreement (except as required by a Benefit Plan as in effect on December 31, 2007) or (F) the taking of any action to accelerate the vesting or payment of any compensation or benefits under any Equity Plan, Benefit Plan or Specified Benefit Agreement, (v) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate would have a Company Material Adverse Effect, (vvi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vivii) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability. Since December 31, 2007, neither the Company nor any of its Subsidiaries have incurred indebtedness.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Johnson & Johnson), Agreement and Plan of Merger (Omrix Biopharmaceuticals, Inc.)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSection 4.10 of the Company Disclosure Schedule, since December 31the Company Balance Sheet Date, 2009 the business of the Company and its Subsidiaries have has been conducted their respective businesses only in the ordinary course consistent with past practice, practices and the Company there has not suffered been (a) any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (ib) any amendment to the articles of incorporation or bylaws of the Company; (c) any split, combination or reclassification of any shares of the Company’s capital stock or declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or propertyproperty or any combination thereof) with in respect to any capital stock of the Company Company’s capital stock, or any of its Subsidiariesredemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption repurchase or other acquisition or offer to redeem, repurchase or otherwise acquire any Company Securities; (d) any sale, assignment, license or other transfer of any Necessary Intellectual Property or Company Intellectual Property (or any rights therein) or acquisition of any material Intellectual Property other than in the ordinary course of business consistent with past practices; (e) except as required by the Company terms of an applicable plan or agreement then in effect or as required or deemed advisable pursuant to applicable Law and except as would not result in an expense greater than $25,000 in the aggregate, (i) any increase in compensation, bonuses or other benefits payable to any director or executive officer or, except in the ordinary course of its Subsidiaries of any shares of capital stock or any business consistent with past practices, other securities employee of the Company or any of its Subsidiaries or (ii) any optionsentering into, warrantsadoption or amendment in any material respect of any employment, calls or rights to acquire such shares change of control, severance, compensation, bonus, profit-sharing, stock option or other securities (stock related rights or other than acquisitions forms of Shares incentive or deferred compensation, retirement benefits or other benefit agreement, plan, arrangement or policy applicable to any director or executive officer or, except in connection the ordinary course of business consistent with the surrender of Shares by holders of Optionspast practices, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset employee of the Company or any of its Subsidiaries, whether ; or not covered by insurance, that would have a Company Material Adverse Effect, (vf) any change in accounting methodsresolution, principles commitment or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect agreement to depreciation and amortization take any of the assets actions described in clauses (b) through (e) of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythis Section 4.10.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Roche Holding LTD), Agreement and Plan of Merger (Ventana Medical Systems Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted to the extent arising out of or contemplated by this Agreementrelating to the Transactions, since December 31, 2009 2016, (a) the Company and its Subsidiaries have conducted their respective businesses only business of the SALIC Group has been operated in all material respects in the ordinary course consistent with past practiceOrdinary Course of Business, and the Company (b) there has not suffered occurred any event or events that, individually or in the aggregate, have had, or would reasonably be expected to have, a Company SALIC Material Adverse Effect, and since December 31(c) other than as set forth in Section 3.8(c) of the SALIC Disclosure Schedule, 2009 there has not been (i) occurred any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of SALIC’s outstanding capital stock or the outstanding capital stock of the Company or any of its Subsidiaries, SALIC Group Companies other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, regular dividend payments and (iid) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or there has not covered by insurance, that would have a Company Material Adverse Effect, (v) occurred any change in accounting methods, principles or practices by the any SALIC Group Company materially affecting its assets, liabilities assets or businessesliabilities, except insofar as may have been required by Applicable Law or required or permitted by a change in applicable GAAP or SAP. Except with regard to Material Contracts (viwhich are addressed in Section 3.16) except and Reinsurance Contracts and Reserve Financing Contracts (which are addressed in Section 3.21), other than as set forth in Section 3.8(e) of the SALIC Disclosure Schedule, since December 31, 2016 to the date hereof, no SALIC Group Company has taken any action or omitted to take any action, which action or omission, if occurring after the date hereof without the consent of Purchaser, had Section 5.2 been in effect from December 31, 2016 to the date hereof, would constitute (x) a breach of clause (i) through (iv), (vii), (viii), (ix), (x), (xi), (xiii), (xv), (xvi), (xviii), (xix), (xx) or (xxi) (or clause (xxii) with respect to depreciation and amortization the foregoing clauses) of the assets of the Company Section 5.2; or any of its Subsidiaries, (y) a breach in any material Tax election respect of clause (v), (xii), (xiv), or change in (xvii) (or clause (xxii) thereof with respect to such election, any change in material method other clauses) of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySection 5.2.
Appears in 2 contracts
Samples: Stock Purchase Agreement by And, Stock Purchase Agreement
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 6.6 attached hereto, since December 31January 1, 2009 1995, the Company has conducted the Business in the ordinary course, and there has not been or occurred with respect to the Company: (i) any change in or amendment to its Subsidiaries Articles of Incorporation or Bylaws or any recapitalization or reclassification of its authorized or outstanding capital stock; (ii) any damage, destruction or loss, whether or not covered by insurance, which has had or may have conducted their respective businesses only a Material Adverse Effect on the Company or its ability to operate the Business in the ordinary course and consistent with past practicepractices; (iii) any amendment, and modification or termination of any Material Contract or the Company has not suffered termination, cessation or loss of or any material change in the pricing or other material terms of any product supply or other business arrangement or relationship which would or could reasonably be expected to have a Company Material Adverse Effect; (iv) other than immaterial increases in regular salaries or wages made in the ordinary course of business and consistent with past practices, and since December 31any increase in, 2009 there has not been or commitment to increase, the direct or indirect compensation or benefits payable or to become payable to any of the Company's officers, directors, employees, agents, or independent contractors, or the payment or awarding, or the making of any commitment to pay, any severance, bonus, incentive or special or deferred compensation to or similar arrangements with any of such officers, directors, employees, agents or independent contractors or the adoption of any new, or any material amendment or modification of any existing, Employee Plan (ias hereinafter defined); (v) any sale or issuance of, or grant of options, warrants or other rights to acquire, any shares of capital stock or other securities (whether currently outstanding or authorized or available for issuance); (vi) any declaration, setting aside or payment of any a dividend or other distribution (whether in cashrespect of its capital stock, stock or property) with respect to any capital stock of the Company or any of its Subsidiariesdirect or indirect redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption repurchase or other acquisition by the Company of any shares of its capital stock or other securities, or any issuance or the creation of its Subsidiaries of any commitment or obligation to issue any shares of capital stock or any rights or securities convertible, exchangeable or exercisable into shares of capital stock, or any transfer, sale, pledge, assignment or other securities disposition of, any of the Shares, or any interest in or right to acquire any of the Shares; (vii) any waiver or release of any material right or claim of the Company; (viii) except for sales of inventory made, and Permitted Liens (as defined in Subsection 6.7(d) below) incurred in the ordinary course of business and consistent with past practices, any sale, transfer, mortgage, pledge or subjection to Lien of or affecting any of its properties or assets other than sales of assets that are not material to and are no longer needed in the Business; (ix) the incurrence of any indebtedness for borrowed money or capitalized lease obligations or any guaranty of indebtedness of any other person or entity; (x) any capital expenditures or any commitment involving more than [$25,000] individually or [$50,000] in the aggregate; (xi) any material alteration in the manner of keeping the books, accounts or records of the Company or any in the manner of its Subsidiaries preparing financial statements, or any optionschange in the accounting principles, warrantspractices, calls policies or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock procedures of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a any modification or change in GAAP GAAP); (xii) any material alteration in the operating or employment policies and procedures of the Company; (xiii) any other event or condition of any character that has had or could reasonably be expected to result in a Material Adverse Effect on the Company or the Business; or (vixiv) except with respect to depreciation and amortization of the assets of any agreement or commitment by the Company or any Shareholder to do any of its Subsidiaries, any material Tax election or change the things described in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythe preceding clauses (i) through (xiii).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Saturn Electronics & Engineering Inc), Stock Purchase Agreement (Smartflex Systems Inc)
Absence of Certain Changes. (a) Except for liabilities incurred as set forth in connection with this Agreement and except the Company SEC Documents, or as expressly permitted or contemplated otherwise required by this Agreement, since December March 31, 2009 2008 (the “Company Balance Sheet Date”), through the date of this Agreement, (i) the Company and each of its Subsidiaries have conducted their respective businesses only in the ordinary course of business consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 (ii) there has not been occurred: (iA) any acquisition, sale, or transfer of any material asset of the Company or its Subsidiaries, except for sales of assets and licenses of Company Intellectual Property in the ordinary course of business consistent with past practices, (B) except as required by applicable Laws or GAAP, any material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its material assets, (C) any declaration, setting aside or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to the Shares, or any direct or indirect redemption, purchase or other acquisition by Company or any of its Subsidiaries of any of its shares of capital stock stock, respectively (except for any Shares withheld in connection with the vesting of any Restricted Shares), (D) any amendment or change to the Company Certificate or the respective organizational documents of any of its Subsidiaries, (E) any Material Contract entered into by the Company or any of its Subsidiaries, other than as provided to Parent, or any declaration setting aside material amendment or payment from termination of, or default under, any Material Contract (or contract that, but for such termination, would be a wholly owned Subsidiary Material Contract), (F) any increase in or modification of the compensation or benefits payable or to become payable by Company or any of its Subsidiaries to any of their respective directors, employees or consultants other than any increase or modification in the Companyordinary course of business consistent with past practice, or (iiG) any purchase, redemption or other acquisition agreement by the Company or any of its Subsidiaries of to do 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 things described in the preceding clauses (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonA) through (F), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Napster Inc), Agreement and Plan of Merger (Best Buy Co Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSection 3.13 of the Company Disclosure Schedule, since December 31, 2009 the Balance Sheet Date the business of the Company and its Subsidiaries have Subsidiary has been conducted their respective businesses only in the ordinary course consistent with past practiceOrdinary Course of Business, and there have not been (a) any events or changes that have resulted in or would reasonably be expected to result in, individually or in the Company has not suffered aggregate, a Company Material Adverse Effect, and since December 31, 2009 there has not been Effect (ias defined below); (b) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the equity interests of the Company; or (c) any capital stock change by the Company or its Subsidiary in accounting principles, practices, policies or methods (including with respect to reserves), (d) any amendment to the Organizational Documents of the Company or its Subsidiary; (e) any transaction with, or for the benefit of, any Shareholder, Member of the Immediate Family of any Shareholder (if applicable) or any Affiliate of any of its Subsidiaries, the foregoing Persons (other than any declaration setting aside or payment from a wholly owned Subsidiary payments of wages and salaries made to officers, directors and employees in the Company to the Company, Ordinary Course of Business); (iif) any purchasematerial loss, redemption destruction or other acquisition by damage (in each case, whether or not insured) affecting the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any material asset of the Company or its Subsidiary; (g) any increase in the compensation payable or paid, whether conditionally or otherwise, to any employee, consultant or agent other than in the Ordinary Course of Business, any director or officer or any Shareholder or any Affiliate of any Shareholder; (h) any agreement by the Company or its Subsidiary to do any of the things referred to elsewhere in this Section 3.13, (i) neither the Company nor its Subsidiary has become liable in respect of any guarantee or has incurred, assumed or otherwise become liable in respect of any Debt, except for borrowings in the Ordinary Course of Business under credit facilities in existence as of the Balance Sheet Date; or (j) neither the Company nor its Subsidiary has permitted any of its Subsidiaries, whether or not covered by insurance, that would have assets to become subject to a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by Lien other than a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityPermitted Lien.
Appears in 2 contracts
Samples: Contribution and Share Purchase Agreement (Panther Expedited Services, Inc.), Contribution and Share Purchase Agreement (Panther Expedited Services, Inc.)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement Since the date of the Unaudited Interim Balance Sheet, there has been (i) no material adverse change to, and except as expressly permitted no material adverse development in, the assets, liabilities, business, properties, operations, condition (financial or contemplated by this Agreementotherwise), since December 31, 2009 results of operations or prospects of the Company and or its Subsidiaries have conducted their respective businesses only Subsidiaries, (ii) no Material Adverse Effect, (iii) no satisfaction or discharge of any material lien, claim or encumbrance or payment of any obligation by the Company, except in the ordinary course consistent with past practiceof business and (iv) no waiver, and not in the Company has not suffered a Company Material Adverse Effectordinary course of business, and since December 31, 2009 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any Subsidiary of its Subsidiaries a material right or of any shares of capital stock or any other securities a material debt owed to it. Since the date of the Unaudited Interim Balance Sheet, neither the Company or nor any of its Subsidiaries or has (i) purchased any options, warrants, calls or rights to acquire such shares or other securities of its outstanding Common Stock (other than acquisitions of Shares from its employees or other service providers in connection with the surrender termination of Shares by holders their service pursuant to the terms of Optionsits equity compensation plans or agreements) or declared or paid any dividends or distributions, RSUs other than the CVRs, (ii) sold any material assets, individually or Warrants in order to pay the exercise price thereof or aggregate, outside of the taxes thereon)ordinary course of business, (iii) made any splitmaterial change or material amendment to, combination or reclassification waiver of any material right, or termination of, any material Contract, (iv) had material transaction entered into or material capital stock expenditures, individually or in the aggregate, outside of the ordinary course of business or (v) experienced any loss of services of any executive officer (as defined in Rule 405 under the Securities Act), other than as disclosed in the SEC Reports prior to the date hereof. Neither the Company or nor any of its Subsidiaries has taken any steps to seek protection pursuant to any bankruptcy law, nor does the Company have any knowledge or reason to believe that its creditors (if any) intend to initiate involuntary bankruptcy proceedings or any issuance or the authorization actual knowledge of any issuance fact that would reasonably lead any such creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3.1(k), “Insolvent” means, with respect to any other securities in respect ofPerson, in lieu (i) the present fair saleable value of such Person’s assets is less than the amount required to pay such Person’s total indebtedness, (ii) such Person is unable to pay its debts and liabilities, subordinated, contingent or in substitution for shares of their respective capital stockotherwise, as such debts and liabilities become absolute and matured, (iii) such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) any damage, destruction or loss such Person has unreasonably small capital with which to any asset of conduct the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change business in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar which it is engaged as may have been required by a change in GAAP or (vi) except with respect such business is now conducted and is proposed to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitybe conducted.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Aeglea BioTherapeutics, Inc.), Securities Purchase Agreement (Aeglea BioTherapeutics, Inc.)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe Disclosure Letter, since December 31, 2009 1996, the Company and its Subsidiaries have conducted their respective businesses business only in the ordinary course of such business consistent with past practicepractices, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any events or states of fact which individually or in the aggregate would have a Material Adverse Effect; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock; (iii) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries; (iv) any material change in accounting principles, practices or methods; (v) any entry into any employment agreement with, or any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of compensation payable or to become payable by the Company or any of its SubsidiariesSubsidiaries to, other than their respective directors, officers or employees, except for increases occurring in the ordinary course of business in accordance with their customary practices which do not exceed $500,000, in the aggregate, annually and employment agreements entered into in the ordinary course of business which do not provide for annual compensation which exceeds $100,000, in the aggregate; (vi) any declaration setting aside increase in the rate or payment from a wholly owned Subsidiary terms (including, without limitation, any acceleration of the right to receive payment) of any bonus, insurance, pension or other employee benefit plan or arrangement covering any such directors, officers or employees, except increases occurring in the ordinary course of business in accordance with its customary practices which do not exceed $1,000,000 in the aggregate; (vii) any entry into any Contract or transaction by the Company or any Subsidiary or modification of any existing Contract which is material to the Company, Company and its Subsidiaries taken as a whole whether or not in the ordinary course of business; (iiviii) any purchase, redemption or other acquisition revaluation by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stockassets, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practices; or (ivix) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered action by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GKN Powder Metallurgy Inc), Agreement and Plan of Merger (Sinter Metals Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementset forth on Schedule 5.6, since December 31, 2009 1996 the Company and its Subsidiaries have conducted their respective businesses Seller has carried on the NAC Business only in the ordinary course consistent with past practicecourse, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been with relation to the NAC Business, (ia) any declarationchange in the assets, setting aside liabilities, sales, income or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock business of the Company Seller or any of in its Subsidiariesrelationships with suppliers, customers or lessors, other than changes which were both in the ordinary course of business and have not been, either in any declaration setting aside case or payment from a wholly owned Subsidiary of in the Company to the Companyaggregate, materially adverse; (iib) any purchase, redemption acquisition or other acquisition disposition by the Company or any of its Subsidiaries Seller of any shares of capital stock asset 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 (property other than acquisitions in the ordinary course of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), business; (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (ivc) any damage, destruction or loss to any asset of the Company or any of its Subsidiariesloss, whether or not covered by insurance, that would have a Company Material Adverse Effectmaterially and adversely affecting, either in any case or in the aggregate, the property or business of the Seller; (vd) any change increase in accounting methodsthe compensation, principles pension or practices other benefits payable or to become payable by the Company materially affecting Seller to any of its assetsofficers or employees, or any bonus payments or arrangements made to or with any of them (other than pursuant to the terms of any existing written agreement or plan of which the Buyer has been supplied complete and correct copies of); (e) any forgiveness or cancellation of any debt or claim by the Seller or any waiver of any right of material value other than compromises of accounts receivable in the ordinary course of business; (f) any entry by the Seller into any transaction other than in the ordinary course of business; (g) any incurrence by the Seller of any obligations or liabilities, whether absolute, accrued, contingent or otherwise (including, without limitation, liabilities as guarantor or businesses, except insofar as may have been required by a change in GAAP or (vi) except otherwise with respect to depreciation obligations of others), other than obligations and amortization liabilities incurred in the ordinary course of business; or (h) any mortgage, pledge, lien, lease, security interest or other charge or encumbrance on any of the assets assets, tangible or intangible, of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.Seller;
Appears in 2 contracts
Samples: Asset Purchase Agreement (Gti Corp), Asset Purchase Agreement (Videoserver Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted Schedule -------------------------- 5.1(f) or contemplated by this Agreementin the Company Reports filed prior to the date hereof, since December 31the Audit Date, 2009 the Company and its Subsidiaries have conducted their respective businesses in all material respects only in, and have not engaged in any material transaction other than according to, the ordinary and usual course of such businesses consistent with past practicepractices, and there has not been any (i) change in the financial condition, properties, business or results of operations of the Company has and its Subsidiaries, except for those changes that, individually or in the aggregate, have not suffered had and are not reasonably likely to have a Company Material Adverse Effect; (ii) material damage, and since December 31destruction or other casualty loss with respect to any material asset or property owned, 2009 there has leased or otherwise used by the Company or any of its Subsidiaries, not been covered by insurance; (iiii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Capital Stock of the Company or any of its Subsidiaries, Subsidiaries (other than wholly-owned Subsidiaries) or any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock Capital Stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries; (iv) amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; (v) incurrence, assumption or guarantee by the Company or any of its Subsidiaries of any indebtedness for borrowed money other securities than in the ordinary course of business and in amounts and on terms consistent with past practices; (vi) creation or assumption by the Company or any of its Subsidiaries of any Lien (other than Permitted Liens) on any material asset other than in the ordinary course of business consistent with past practices; (vii) making of any loan, advance or capital contributions by the Company or any of its Subsidiaries to, or investment in, any Person other than (x) loans or advances to employees in connection with business-related travel, (y) loans made to employees consistent with past practices which are not in the aggregate in excess of $250,000, and (z) loans, advances or capital contributions to or investments in wholly-owned Subsidiaries, and in each case made in the ordinary course of business consistent with past practices; (viii) 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 any relinquishment by the Company or any of its Subsidiaries of any Contract or other right, in either case, material to the Company and its Subsidiaries, taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (ix) 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; or (x) change by the Company or any of its Subsidiaries in accounting principles, practices or methods. Since the Audit Date, except as disclosed in the Company Reports filed prior to the date hereof or increases in the ordinary course of business consistent with past practices, there has not been any increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries to (a) officers of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiib) any split, combination or reclassification of any capital stock employee of the Company or any of its Subsidiaries whose annual cash compensation is $150,000 or more, or any issuance or the authorization amendment of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, Compensation and Benefit Plans (v) any change as defined in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySection 5.1(h)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (International Technology Corp), Agreement and Plan of Merger (Fluor Daniel Gti Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince the Company Balance Sheet Date, since December 31, 2009 the business of the Company and its Subsidiaries have has been conducted their respective businesses only in the ordinary course consistent with past practice, practices and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Without limiting the generality of the foregoing, since the Company Balance Sheet Date, 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon)securities, (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) (A) any damage, destruction granting by the Company or loss any of its Subsidiaries to any asset current or former (1) director of the Company or (2) employee of the Company or any of its Subsidiaries who is a party to a change of control or severance arrangement (all individuals described in the foregoing clauses (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 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 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 clause (C), collectively, “Benefit Agreements”), (D) the removal or modification of any restrictions in any Benefit Agreement or Benefit Plan or awards made thereunder, except as required to comply with Applicable Law or the terms or provisions of any 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 4.10(iv)(A)-(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, whether or not covered by insurance, that would have a Company Material Adverse Effect, and (v) any change in financial accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityGAAP.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pw Eagle Inc), Agreement and Plan of Merger (Pw Eagle Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted the Company SEC Reports or contemplated by this Agreementin Section 3.9 of the Company Disclosure Schedule, since December 31from July 1, 2009 2006 through the date hereof, the Company and its the Company Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, of business and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been been: (ia) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of capital stock of the Company (other than the regular quarterly dividend to be paid to holders of Company Common Stock on September 6, 2006); (b) any material commitment, contractual obligation (including, without limitation, any management or franchise agreement or any of its Subsidiarieslease (capital or otherwise)), other than any declaration setting aside borrowing, liability, guaranty, capital expenditure or payment from transaction (each, a wholly owned Subsidiary of the Company to the Company, (ii“Commitment”) any purchase, redemption or other acquisition entered into by the Company or any of its Subsidiaries of any shares of capital stock or any other securities of the Company or any Subsidiaries outside the ordinary course of its Subsidiaries or any optionsbusiness except for Commitments for expenses of attorneys, warrantsaccountants, calls or rights to acquire such shares or investment bankers and other securities (other than acquisitions of Shares services incurred in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), Merger; (iiic) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any material change in the Company’s accounting methodsprinciples, principles practices or practices by the Company materially affecting its assets, liabilities or businesses, methods except insofar as may have been required by a change in GAAP or GAAP; (vid) except with respect to depreciation and amortization the knowledge of the assets Company, any events, changes, occurrences, effects, facts, violations, developments or circumstances which have had, or are reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; (e) granted to any officer or employee of the Company or any Company Subsidiary any increase in compensation (including wages, salaries, bonuses or any other remuneration), except in the ordinary course of its Subsidiariesbusiness consistent with past practice or as was required under employment agreements in effect as of July 1, 2006, (f) granted to any material Tax election such officer or change employee of the Company or any Company Subsidiary any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of July 1, 2006 or (g) entered into by the Company or any Company Subsidiary any employment, severance or termination agreement with any such electionofficer or employee; (h) the creation or assumption by the Company or any Company Subsidiary of any liens, pledges, security interests, claims or other encumbrances in an amount, individually or in the aggregate, in excess of $100,000 on any asset other than in the ordinary course of business consistent with past practices; (i) the making of any loan, advance or capital contribution to or investment in any Person (other than any wholly owned Company Subsidiary) by the Company or any Company Subsidiary; or (j) any change that would prevent or delay beyond the Drop Dead Date (as defined in material method Section 8.1(b)) the ability of accounting for Tax purposes the Company from consummating the Merger or any settlement or compromise of any material income Tax liability.the other transactions contemplated in this Agreement. 13
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Geo Group Inc), Agreement and Plan of Merger (CentraCore Properties Trust)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementspecifically set forth on Schedule 4.14 of the Disclosure Schedule, since December 31, 2009 2010 (the Company and its Subsidiaries have conducted their respective businesses only “Interim Date”) none of the Group Companies have: (a) incurred any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise), except in the ordinary course of business; (b) permitted any of their assets to be subjected to any Lien; (c) acquired, sold, transferred or otherwise disposed of any assets except in the ordinary course of business; (d) made any capital expenditure or commitment therefor which, individually or in the aggregate, exceeded $25,000; (e) declared or paid any dividends or made any distributions on any of their Equity Interests, or redeemed, purchased or otherwise acquired any of their Equity Interests or any Option, or other right to purchase or acquire any of their Equity Interests; (f) made any bonus or profit sharing distribution; (g) increased or prepaid their Indebtedness, except current borrowings under bank credit lines listed on Schedule 4.14 of the Disclosure Schedule in the ordinary course of business, or made any loan to any Person; (h) written down the value of any work-in-process, or written off as uncollectible any notes or accounts receivable, except write-downs and write-offs in the ordinary course of business, none of which, individually or in the aggregate, is material to the Group Companies; (i) granted any increase in the rate of wages, salaries, bonuses or other remuneration of (A) any employee who, whether as a result of such increase or prior thereto, receives aggregate compensation from the Group Companies at an annual rate of $25,000 or more, or (B) except in the ordinary course of business, of any other employee; (j) canceled or waived any claims or rights of material value; (k) made any change in any method of accounting procedures; (l) otherwise conducted the Business or entered into any transaction, except in the usual and ordinary manner and in the ordinary course of their business; (m) entered into, amended or terminated any Material Agreements; (n) entered into, renewed, extended or modified any lease for real property, or, except in the ordinary course of business, any lease of personal property; (o) agreed, whether or not in writing, to do any of the foregoing (except for transactions contemplated by this Agreement); (p) experienced or incurred any material and adverse effect on their assets, liabilities, prospects, results of operation, business or condition (financial or otherwise); (q) failed to preserve intact the present business organization and reputation of the Business, including any failure to: (1) keep the Business and the properties of the Group Companies substantially intact, including their present operations, physical facilities, assets, and working conditions, (2) keep available (subject to dismissals, resignations and retirements in the ordinary course of business consistent with past practicepractice or otherwise not within the Group Companies’ control) the services of the employees of the Group Companies, (3) use commercially reasonable efforts to maintain the goodwill of patients, suppliers, lenders, and other individuals or entities to whom the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any declaration, setting aside Group Companies provide services or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of whom the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares Group Companies otherwise have significant business relationships in connection with the surrender Business, and (4) continue all current sales, marketing and promotional activities of Shares the Group Companies relating to the Business, except to the extent required by holders applicable Law or for changes that are not material; or (r) failure to cause the books and records of Optionsthe Group Companies to be maintained in the usual, RSUs regular and ordinary manner, such that the books and records accurately reflect the Company’s income, expenses, assets and liabilities, and (not permit; (s) caused or Warrants permitted any material change in order to pay any pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy of any Group Company that would materially adversely affect the exercise price thereof Business or the taxes thereon)assets, or (iiit) made or changed any splitTax election, combination changed an annual accounting period, adopted or reclassification changed any accounting method, filed any amended Tax Return, entered into any closing agreement, settled any Tax claim or assessment, surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or taken any other similar action, or omitted to take any action relating to the filing of any capital stock of the Company or any of its Subsidiaries or any issuance Tax Return or the authorization payment of any issuance of any other securities in respect ofTax, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the Tax liability of the any change in material method of accounting the Group Companies for any period ending after the Closing Date or decreasing any Tax purposes or any settlement or compromise attribute of any material income Tax liabilityof the Group Companies existing on the Closing Date.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Radiation Therapy Services Holdings, Inc.), Membership Interest Purchase Agreement (Radiation Therapy Services Holdings, Inc.)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement Since the date of the Unaudited Interim Balance Sheet, there has been (i) no material adverse change to, and except as expressly permitted no material adverse development in, the assets, liabilities, business, properties, operations, condition (financial or contemplated by this Agreementotherwise), since December 31, 2009 results of operations or prospects of the Company and or its Subsidiaries have conducted their respective businesses only Subsidiaries, (ii) no Material Adverse Effect, (iii) no satisfaction or discharge of any material lien, claim or encumbrance or payment of any obligation by the Company, except in the ordinary course consistent with past practice, of business and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to payments under the Company’s outstanding contingent value rights (“CVRs”) and (iv) no waiver, (ii) any purchasenot in the ordinary course of business, redemption or other acquisition by the Company or any Subsidiary of its Subsidiaries a material right or of any shares of capital stock or any other securities a material debt owed to it. Since the date of the Unaudited Interim Balance Sheet, neither the Company or nor any of its Subsidiaries or has (i) purchased any options, warrants, calls or rights to acquire such shares or other securities of its outstanding Common Stock (other than acquisitions of Shares from its employees or other service providers in connection with the surrender termination of Shares by holders their service pursuant to the terms of Optionsits equity compensation plans or agreements) or declared or paid any dividends or distributions, RSUs other than payments under the CVRs, (ii) sold any material assets, individually or Warrants in order to pay the exercise price thereof or aggregate, outside of the taxes thereon)ordinary course of business, (iii) made any splitmaterial change or material amendment to, combination or reclassification waiver of any material right, or termination of, any Material Contract, (iv) entered into any material transaction or made any material capital stock expenditures, individually or in the aggregate, outside of the ordinary course of business or (v) experienced any loss of services of any executive officer (as defined in Rule 405 under the Securities Act), other than as disclosed in the SEC Reports prior to the date hereof. Neither the Company or nor any of its Subsidiaries or has taken any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss steps to seek protection pursuant to any asset of the Company or any of its Subsidiariesbankruptcy law, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.nor does
Appears in 2 contracts
Samples: Securities Purchase Agreement (Spyre Therapeutics, Inc.), Securities Purchase Agreement (Spyre Therapeutics, Inc.)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted the Company SEC Documents or contemplated by this Agreementon Schedule 3.6 of the Company Disclosure Schedule, since December 31, 2009 2006 (the “Company Balance Sheet Date”), through the date of this Agreement, (i) the Company and each of its Subsidiaries have conducted their respective businesses only in the ordinary course of business consistent with past practice, practice and the Company (ii) there has not suffered occurred: (A) any change, event or condition (whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Company Material Adverse Effect, and since December 31(B) any acquisition, 2009 there has not been sale, or transfer of any material asset of the Company or its Subsidiaries, (iC) any material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its assets, (D) any declaration, setting aside or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to the shares of the Company, or any direct or indirect redemption, purchase or other acquisition by Company or any of its Subsidiaries of any of its shares of capital stock of stock, respectively, (E) any Material Contract entered into by the Company or any of its Subsidiaries, other than as provided to Parent, or any declaration setting aside material amendment or payment from termination of, or default under, any Material Contract (or contract that, but for such termination, would be a wholly owned Subsidiary Material Contract), (F) any amendment or change to the Company Articles or the Certificate of Incorporation of any of its Subsidiaries, (G) any increase in or modification of the compensation or benefits payable or to become payable by Company or any of its Subsidiaries to any of their respective directors, employees or consultants other than, with respect to non-officer employees and consultants only, any increases in the Companyordinary course of business consistent with past practice, or (iiH) any purchase, redemption or other acquisition agreement by the Company or any of its Subsidiaries of to do 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 things described in the preceding clauses (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonA) through (G), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Guideline, Inc.), Agreement and Plan of Merger (Infousa Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth on Schedule 4.6 of the Company Disclosure Letter or in connection with this Agreement and except the Completed Commission Filings or as expressly required or permitted or contemplated by this Agreementthe Transaction Documents, since December 31, 2009 2000 to the date of this Agreement, (i) there has been no Material Adverse Effect on the Company or, to the knowledge of the Company, any event, change, occurrence, effect, fact, violation or circumstances that could reasonably be expected to have a Material Adverse Effect on the Company, (ii) the businesses of the Company and each of its Subsidiaries have been conducted their respective businesses only in the ordinary course consistent with past practicecourse, and (iii) neither the Company nor any of its Subsidiaries has not suffered a incurred any material liabilities (direct, contingent or otherwise) or engaged in any material transaction or entered into any material agreement outside the ordinary course of business, (iv) neither the Company Material Adverse Effectnor any of its Subsidiaries have increased the compensation of any officer or granted any general salary or benefits increase to their respective employees, and since December 31other than in the ordinary course of business, 2009 (v) neither the Company nor any of its Subsidiaries has taken any action referred to in Section 6.3 hereof, (vi) there has not been (i) any no declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock class of the Company Shares or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock Shares 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 and (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiivii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any there has been no change in accounting methods, principles or practices by the Company materially affecting its assetsin accounting principles, liabilities practices or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitymethods.
Appears in 2 contracts
Samples: Acquisition Agreement (Amerada Hess Corp), Acquisition Agreement (Triton Energy LTD)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince September 30, since December 312006 (the “Company Balance Sheet Date”), 2009 the Company and has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, or is reasonably likely to result in, or to the best of Company’s knowledge any event beyond Company’s control that would have is reasonably likely to result in, a Company Material Adverse EffectEffect to Company; (ii) any acquisition, sale or transfer of any material asset of Company or any of its subsidiaries other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or amortization policies or rates) by Company or any revaluation by Company of any of its or any of its subsidiaries’ assets; (viiv) except any declaration, setting aside, or payment of a dividend or other distribution with respect to depreciation and amortization the shares of the assets Company, or any direct or indirect redemption, purchase or other acquisition by Company of the any of its shares of capital stock; (v) any material contract entered into by Company or any of its Subsidiariessubsidiaries, other than in the ordinary course of business and as provided to Parent, or any amendment or termination of, or default under, any material Tax election contract to which Company or any of its subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Certificate of Incorporation or Bylaws; or (vii) any increase in such electionor modification of the compensation or benefits payable, or to become payable, by Company to any change of its directors or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in material method the ordinary course of accounting for Tax purposes or business and consistent with Company’s past practices. Company has not agreed since September 30, 2006 to take any settlement or compromise of the actions described in the preceding clauses (i) through (vii) and is not currently involved in any material income Tax liabilitynegotiations to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (SP Holding CORP), Agreement and Plan of Merger and Reorganization (SP Holding CORP)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe SEC Documents, since December 31, 2009 2019, (i) there has been no material adverse change in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries,(ii) the Company and its Subsidiaries Subsidiaries, considered as one entity, have conducted their respective businesses only not incurred any material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference with its business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and its Subsidiaries, considered as one entity, or has entered into any transactions not in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 of business; (iii) there has not been any material disruption, material delay or other material adverse change in (iA) any declaration, setting aside or payment the development of any dividend of the Company’s product candidates, (B) the anticipated timeline of pre-clinical or clinical trials to support the development of any of the Company’s product candidates, or (C) the recruitment of candidates for clinical trials to support the development of any of the Company’s product candidates, in each case as a result of the recent outbreak of COVID-19, or as a result of any measures intended to contain the outbreak of COVID-19 imposed by any federal, state, local or foreign government or government agency in any country or region in which the Company, or any of its agents, consultants, advisors or vendors, has assets or properties or conducts business, including, without limitation, any limitations, curtailments, suspensions or closures of businesses, business offices or establishments, schools, properties and other public areas due to quarantines, curfews, travel restrictions, workplace controls, “stay at home” orders, social distancing requirements or guidelines or other distribution public gathering restrictions or limitations; and (whether iv) there has not been any material decrease in cash, the capital stock or property) with respect to any capital stock material increase in any short-term or long-term indebtedness of the Company or its Subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other Subsidiaries, by any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company’s Subsidiaries on any class of capital stock, (ii) or any purchase, repurchase or redemption or other acquisition by the Company or any of its Subsidiaries of any shares class of capital stock or stock. The Company has not taken any other securities of steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or any options, warrants, calls reason to believe that its creditors intend to initiate involuntary bankruptcy or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order insolvency proceedings. The Company is financially solvent and is generally able to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar debts as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythey become due.
Appears in 2 contracts
Samples: Purchase Agreement (BioCardia, Inc.), Purchase Agreement (Moleculin Biotech, Inc.)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and the Company Disclosure Schedule, since September 27, 2009, except as otherwise expressly permitted or contemplated by this Agreement, since December 31, 2009 the Company and each Company Subsidiary has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practicepractice and there has not been: (a) any damage, and destruction or loss (whether or not covered by insurance) affecting the business, properties or assets of the Company or any Company Subsidiary that has not suffered had, or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; (b) any change by the Company in its accounting methods, principles or practice (other than changes required by GAAP); (c) other than in the ordinary course of business consistent with past practice, any sale of a material amount of assets of the Company and since December 31the Company Subsidiaries; (d) any material Tax election, 2009 there any material change in method of accounting with respect to Taxes or any compromise or settlement of any proceeding with respect to any material Tax liability; (e) any change in the financial condition, results of operations or business of the Company and any of the Company Subsidiaries that has not been had, or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect; (if) any revaluation by Company of any of its assets in any material respect; (g) any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Company Common Stock or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to acquisition of any capital stock of the Company its securities or any of its Subsidiaries, other than the securities of any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, Subsidiary; (iih) any purchaseincrease in the wages, redemption salaries, compensation, pension, or other acquisition by fringe benefits or perquisites payable to any executive officer, employee, or director from the Company or any amount thereof in effect as of its Subsidiaries of any shares of capital stock or any other securities of the Company or any of its Subsidiaries or any optionsJanuary 1, warrants, calls or rights 2009 (which amounts have been previously disclosed to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonParent), granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus; or (iiii) any splitaction, combination event, occurrence, development or reclassification state of any capital stock of the Company circumstances or any of its Subsidiaries facts that has had, or any issuance or the authorization of any issuance of any other securities in respect ofwould be reasonably likely to have, in lieu of individually or in substitution for shares of their respective capital stockthe aggregate, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Comsys It Partners Inc), Agreement and Plan of Merger (Manpower Inc /Wi/)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe Veeco SEC Documents, since December 31September 30, 2009 1999 (the Company "VEECO BALANCE SHEET DATE"), Veeco and its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that would have or might reasonably be expected to result in, a Company Material Adverse EffectEffect to Veeco; (ii) any acquisition, sale or transfer of any material asset of Veeco or any of its subsidiaries other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Veeco or any revaluation by Veeco of any of its assets; (iv) any declaration, liabilities setting aside, or businessespayment of a dividend or other distribution with respect to the shares of Veeco, except insofar as may have been required or any direct or indirect redemption, purchase or other acquisition by Veeco of any of its shares of capital stock; (v) any material contract entered into by Veeco or any of its subsidiaries, other than in the ordinary course of business, or any material amendment or termination of, or default under, any material contract to which Veeco or any of its subsidiaries is a change in GAAP party or by which it or any of them is bound; (vi) any action or failure to act that could reasonably be expected to cause the Merger to fail to qualify as a reorganization as described in Section 368(a) of the Code with respect to which no gain or loss will be recognized by a stockholder of the Company on the conversion of Company Common Stock into Veeco Shares pursuant to the Merger (except with respect to depreciation and amortization any cash received in lieu of the assets of the Company a fractional share); or (vii) any agreement by Veeco or any of its Subsidiaries, subsidiaries to do any material Tax election or change of the things described in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythe preceding clauses (i) through (vi) (other than negotiations with the Company and its representatives regarding the transactions contemplated by this Merger Agreement).
Appears in 2 contracts
Samples: Affiliates Agreement (Veeco Instruments Inc), Affiliates Agreement (Veeco Instruments Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementFrom June 30, since December 312003 through the date hereof, 2009 the Company and its Subsidiaries have conducted their respective businesses only business in the ordinary course of such business consistent with past practices, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2003 through the date hereof, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and the Company has there have not suffered been (a) any events, changes, effects, developments or states of fact that would reasonably be expected to have or constitute a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (ib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the capital stock of the Company; (c) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock; (d) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries; (e) any material change in accounting principles, practices or methods; (f) any entry into any employment agreement with, or any material increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of compensation payable or to become payable by the Company or any of its SubsidiariesSubsidiaries to, other than their respective directors or officers, except for increases occurring in the ordinary course of business in accordance with their customary practices and employment agreements entered into in the ordinary course of business; (g) any declaration setting aside material increase in the rate or payment from a wholly owned Subsidiary terms (including, without limitation, any acceleration of the Company right to receive payment) of any bonus, insurance, pension or other employee benefit plan or arrangement covering any such directors, officers or employees, except increases occurring in the ordinary course of business in accordance with the Company, ’s customary practices; (iih) any purchase, redemption or other acquisition revaluation by the Company or any of its Subsidiaries of any shares material amount of capital stock their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practices; and (i) any other securities action of the Company type described in Section 7.1(a) or any Section 7.1(b) that had such action been taken after the date of its Subsidiaries or any options, warrants, calls or rights to acquire this Agreement would be in violation of such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySection.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (FTD Inc), Agreement and Plan of Merger (FTD Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince September 30, since December 312003 (the “Company Balance Sheet Date”) through the Effective Time, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insuranceinsurance or similar indemnification agreement) that has resulted in, that or would have reasonably be expected to result in, a Company Material Adverse Effect, (vii) any acquisition, sale or transfer of any material asset of Company or any of its subsidiaries, (iii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting or any revaluation by Company of any of its or any of its subsidiaries’ assets, liabilities (iv) any declaration, setting aside, or businesses, except insofar as may have been required by payment of a change in GAAP dividend or (vi) except other distribution with respect to depreciation and amortization the shares of the assets Company, or any direct or indirect redemption, purchase or other acquisition by Company of the any of its shares of capital stock, (v) any material contract entered into by Company or any of its Subsidiariessubsidiaries, or any material amendment or (except by way of lapse of the term thereof) termination of, or default under, any material Tax election contract to which Company or any of its subsidiaries is a party or by which it is bound, (vi) any action to amend or change the Certificate of Incorporation or Bylaws of Company, (vii) any material increase in such electionthe compensation or benefits payable or to become payable by Company to any of its directors or employees, other than in the ordinary course of business and as contemplated by this Agreement or increases associated with merit or annual pay increases or promotions in the ordinary course of business, (viii) any change in material method transaction with any affiliate of accounting for Tax purposes Company which is not a Subsidiary of Company, or (ix) any negotiation or agreement by Company or any settlement or compromise of its subsidiaries to do any material income Tax liabilityof the things described in the preceding clauses (i) through (viii) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the agreements disclosed herein).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Nptest Holding Corp), Agreement and Plan of Reorganization (Credence Systems Corp)
Absence of Certain Changes. Except for liabilities incurred Since June 30, 2014 (the “Target Balance Sheet Date”), other than any actions taken with Acquiror’s prior written consent in connection with this Agreement relation to the Spin-Off Transaction and except as expressly permitted or contemplated by this Agreementaccurately described in Section 3.6 of the Target Disclosure Schedule, since December 31, 2009 the Company Target and its Subsidiaries have conducted their respective businesses only the Target Business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred (ia) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that or would have reasonably be expected to result in, a Company Target Material Adverse Effect; (b) any acquisition, sale or transfer of any material asset of Target other than in the ordinary course of business and consistent with past practice; (vc) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Target or any revaluation by Target of any of its assets; (d) any declaration, liabilities setting aside, or businesses, except insofar as may have been required by payment of a change in GAAP dividend or (vi) except other distribution with respect to depreciation and amortization the shares of Target (other than a distribution of shares of Target that occurs due to the assets exercise of the Company a Target Option) or any direct or indirect redemption, purchase or other acquisition by Target of any of its Subsidiariesshares of capital stock; (e) any Material Contract entered into by Target, other than in the ordinary course of business and as provided to Acquiror, or any material amendment (other than in the ordinary course of business and as provided to Acquiror) or termination of, or default under, any material Tax election Material Contract to which Target is a party or by which it is bound; (f) any amendment or change to the Restated Certificate or Bylaws of Target; (g) any increase in such electionor modification of the compensation or benefits payable or to become payable by Target to any of its directors or employees, other than increases to the compensation or benefits of non-officer employees made in the ordinary course of business consistent with past practice; or (h) any change agreement by Target to do any of the things described in material method the preceding clauses (a) through (g). At the Effective Time, there will be no accrued or unpaid dividends on shares of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityTarget’s Capital Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (INPHI Corp), Agreement and Plan of Merger (INPHI Corp)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSection 3.12 of the Parent Disclosure Schedule, since December 31, 2009 2004 (the Company and “Parent Balance Sheet Date”), Parent has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company there has not suffered occurred: (a) any change, event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in, a Company Parent Material Adverse Effect; (b) any acquisition, sale or transfer of any material asset of Parent or any of its Subsidiaries other than in the ordinary course of business and since December 31, 2009 there has not been consistent with past practice; (ic) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Parent or any revaluation by Parent of any of its or any of its Subsidiaries’ assets; (d) any declaration, setting aside aside, or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to any capital stock the shares of the Company Parent, or any of its Subsidiariesdirect or indirect redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption purchase or other acquisition by Parent of any of its shares of capital stock other than the Company purchase of unvested shares upon employment or service termination; (e) any entering into by Parent or any of its Subsidiaries of any shares of capital stock material contract or agreement, or any material amendment or termination of, other securities than in the ordinary course of the Company business, or default by Parent or any of its Subsidiaries under, any material contract or any options, warrants, calls or rights agreement to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company which Parent or any of its Subsidiaries is a party or any issuance or by which it is bound (or, to the authorization Knowledge of any issuance of Parent, by any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, party thereto); (ivf) any damage, destruction amendment or loss change to the Certificate of Incorporation or Bylaws; or (g) any asset increase in or modification of the Company compensation or benefits payable, or to become payable, by Parent to any of its Subsidiariesdirectors, whether consultants or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in the ordinary course of business and consistent with Parent’s past practices. Except as set forth in Section 3.12 of the Parent Disclosure Schedule, Parent has not covered by insuranceagreed since December 31, that would have a Company Material Adverse Effect2004 to effect any changes, events, or conditions or take any of the actions described in the preceding clauses (va) through (g) and is not currently involved in any change negotiations to do any of the things described in accounting methods, principles or practices by the preceding clauses (a) through (g) (other than negotiations with the Company materially affecting and its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of representatives regarding the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityContemplated Transactions).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Copper Mountain Networks Inc), Agreement and Plan of Merger and Reorganization (Tut Systems Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe Company Reports filed prior to the date hereof, since December October 31, 2009 1999 the Company and each of its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than according to, the ordinary and usual course consistent with past practiceof such businesses, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any change in the financial condition, properties, business or results of operations of the Company and its Subsidiaries, or any development or combination of developments of which the executive officers of the Company have knowledge, that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect; (ii) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the capital stock of the Company; (iv) any change by the Company in accounting policies, practices, procedures, methods, assumptions or principles of the Company or any of its Subsidiaries, other than any declaration setting aside ; or payment from a wholly owned Subsidiary of the Company to the Company, (iiv) any purchase, redemption increase in the compensation payable or other acquisition that could become payable by the Company or any of its Subsidiaries to executive officers, other than increases in the ordinary course, or, other than as required by Law, any amendment of any shares of capital stock the Compensation and Benefit Plans (as defined in Section 5.1(h)) or the adoption of any new Compensation and Benefit Plan. For purposes of this Agreement, "KNOWLEDGE OF THE EXECUTIVE OFFICERS" or any other securities variation thereof means, in the case of the Company, knowledge of the executive officers of the Company (or any its Subsidiaries) and, in the case of Parent, knowledge of the executive officers of Parent (or its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonSubsidiaries), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityeach case after due inquiry.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Medical Resources Management Inc), Agreement and Plan (Emergent Group Inc/Ny)
Absence of Certain Changes. Except for liabilities incurred as (a) disclosed on the Reference Balance Sheet; (b) disclosed in connection with this Agreement and except as Section 4.16 of the Disclosure Schedule; or (c) expressly permitted or contemplated by this Agreement, since December 31the date of the Reference Balance Sheet, 2009 neither the Company Companies nor their Subsidiaries have: (i) suffered any change constituting a Seller Material Adverse Effect; (ii) split, combined or reclassified their capital stock; (iii) materially changed their accounting principles, practices or methods, except as required by GAAP or applicable Law; (iv) declared or paid any dividend or other distribution of cash or other assets or made any payments to Seller or its affiliates (in each case, on a net basis), or released any claims against Seller or its affiliates, except for (A) participation in Seller's cash management program pursuant to which cash collected by the Companies and their Subsidiaries is swept by Seller to reduce amounts outstanding under the Intercompany Notes and expenditures made by the Companies and the Subsidiaries are paid with funds provided by Seller increasing the balances of the Intercompany Notes, consistent with past practice, and (B) the payment of any accounts payable to Seller or its affiliates arising from the sale in the ordinary course of business of food or other products or services to the Companies and the Subsidiaries have conducted their respective businesses only by Seller or such affiliates consistent with past practice; (v) materially increased any compensation or expanded any perquisites of employees; (vi) paid any liabilities or collected any receivables other than in the ordinary course of business based on the normal terms thereof and consistent with past practice; (vii) sold or otherwise transferred any material asset of the Companies or the Subsidiaries; or (viii) otherwise operated the business other than in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitypractices.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Performance Food Group Co), Stock Purchase Agreement (Chiquita Brands International Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since Since December 31, 2009 1998 (the "Company and -------------------------- Balance Sheet Date"), except as set forth in any Company SEC Document (but only to the extent set forth therein), Company has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any change, event or condition (whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Material Adverse Effect on Company; (ii) any acquisition, sale or transfer of any material asset of Company or any of its Subsidiaries other than in the ordinary course of business and consistent with past practice; (iii) any material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company or any revaluation by Company of any of its or any of its Subsidiaries' assets, except as set forth in any Company SEC Document (but only to the extent set forth therein); (iv) any declaration, setting aside aside, or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to the shares of Company, or any direct or indirect redemption, purchase or other acquisition by Company of any of its shares of capital stock of the stock; (v) any material contract entered into by Company or any of its Subsidiaries, other than in the ordinary course of business and as made available to Parent, or any declaration setting aside material amendment or payment from a wholly owned Subsidiary of the Company termination of, or default under, any material contract to the Company, (ii) any purchase, redemption or other acquisition by the which Company or any of its Subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Certificate of Incorporation or Bylaws of Company; (vii) any shares of capital stock material increase in or any other securities modification of the compensation or benefits payable or to become payable by Company or any of its Subsidiaries or to any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stockdirectors, officers or employees, other than (ivin the case of non-executive officer employees) in the ordinary course of business consistent with past practice; (viii) any damagematerial change in the interest rate risk management and hedging policies, destruction procedures or loss to any asset practices of the Company or any of its Subsidiaries, whether or not covered by insuranceany failure to comply with such policies, that would have a Company Material Adverse Effect, procedures and practices; or (vix) any change in accounting methods, principles negotiation or practices agreement by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, Subsidiaries to do any material Tax election or change of the things described in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythe preceding clauses (i) through (vii) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (E Trade Group Inc), Agreement and Plan of Merger and Reorganization (E Trade Group Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince June 30, since December 312005 (the “Company Balance Sheet Date”) through the Effective Time, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insuranceinsurance or similar indemnification agreement) that has resulted in, that or would have reasonably be expected to result in, a Company Material Adverse Effect, (vii) any acquisition, sale or transfer of any material asset of Company or any of its subsidiaries, (iii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting or any revaluation by Company of any of its or any of its subsidiaries’ assets, liabilities (iv) any declaration, setting aside, or businesses, except insofar as may have been required by payment of a change in GAAP dividend or (vi) except other distribution with respect to depreciation and amortization the shares of the assets Company, or any direct or indirect redemption, purchase or other acquisition by Company of the any of its shares of capital stock, (v) any material contract entered into by Company or any of its Subsidiariessubsidiaries, or any material amendment or (except by way of lapse of the term thereof) termination of, or default under, any material Tax election contract to which Company or any of its subsidiaries is a party or by which it is bound, (vi) any action to amend or change the Certificate of Incorporation or Bylaws of Company, (vii) any material increase in such electionthe compensation or benefits payable or to become payable by Company to any of its directors or employees, other than in the ordinary course of business and as contemplated by this Agreement or increases associated with merit or annual pay increases or promotions in the ordinary course of business, (viii) any change in material method transaction with any affiliate of accounting for Tax purposes Company which is not a Subsidiary of Company, or (ix) any negotiation or agreement by Company or any settlement or compromise of its subsidiaries to do any material income Tax liabilityof the things described in the preceding clauses (i) through (viii) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the agreements disclosed herein).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Centra Software Inc), Agreement and Plan of Reorganization (Saba Software Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince September 30, since December 312006 (the “Parent Balance Sheet Date”), 2009 the Company and Parent has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, or is reasonably likely to result in, or to the best of Parent’s knowledge any event beyond Parent’s control that would have is reasonably likely to result in, a Company Material Adverse EffectEffect to Parent; (ii) any acquisition, sale or transfer of any material asset of Parent or any of its subsidiaries other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or (viamortization policies or rates) except with respect to depreciation and amortization by Parent or any revaluation by Parent of the assets any of the Company its or any of its Subsidiariessubsidiaries’ assets; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of Parent, or any direct or indirect redemption, purchase or other acquisition by Parent of any of its shares of capital stock; (v) any material contract entered into by Parent or any of its subsidiaries, other than in the ordinary course of business and as provided to Company, or any amendment or termination of, or default under, any material Tax election contract to which Parent or any of its subsidiaries is a party or by which it is bound; (vi) any amendment or change to Parent’s Certificate of Incorporation or Bylaws; or (vii) any increase in such electionor modification of the compensation or benefits payable, or to become payable, by Parent to any change of its directors or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in material method the ordinary course of accounting for Tax purposes or business and consistent with Parent’s past practices. Parent has not agreed since September 30, 2006 to do any settlement or compromise of the things described in the preceding clauses (i) through (vii) and is not currently involved in any material income Tax liabilitynegotiations to take any of the actions described in the preceding clauses (i) through (vii) (other than negotiations with the Company and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (SP Holding CORP), Agreement and Plan of Merger and Reorganization (SP Holding CORP)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this Agreementits Reports filed prior to the date hereof, since December 31, 2009 the Company 2001 it and its Subsidiaries have conducted their respective businesses in all material respects only in, and have not engaged in any material transaction other than according to, the ordinary and usual course consistent with past practice, of such businesses and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any change in the condition (financial or otherwise), properties, assets (including intangible assets), business or results of operations of it and its Subsidiaries, except those changes that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Material Adverse Effect on it; (ii) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by it or any of its Subsidiaries, whether or not covered by insurance; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cashrespect of its capital stock, stock except for dividends or property) with respect to any other distributions on its capital stock publicly announced prior to the date hereof and, in the case of the Company, the issuance of the Company Rights pursuant to the Company Rights Agreement and in the case of Parent regular quarterly cash dividends payable by Parent in respect of the shares of Parent Common Stock at the rate of $.02 per share; or (iv) any change in its accounting principles, practices or methods. Since December 31, 2001, except as provided for herein, as disclosed in Section 5.1(f) of its Subsidiaries, other than any declaration setting aside respective Disclosure Letter or payment from a wholly owned Subsidiary of the Company as disclosed in its Reports filed prior to the Companydate hereof, (ii) there has not been any purchase, redemption increase in the compensation payable or other acquisition that could become payable by the Company it or any of its Subsidiaries to (x) its officers or (y) any key employees of any shares of capital stock it or its Subsidiaries, 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any officers of its Subsidiaries, whether whose annual cash compensation is $250,000 or not covered by insurancemore, that would have a Company Material Adverse Effect, (v) or any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization amendment of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityCompensation and Benefit Plans.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (HNC Software Inc/De), Agreement and Plan of Merger (Fair Isaac & Company Inc)
Absence of Certain Changes. Except Since the date of the Latest Balance Sheet, neither the Company nor any of its Subsidiaries has: (a) suffered any adverse change with respect to its business or financial condition results of operations, assets, liabilities (absolute, accrued or contingent), reserves, operations or prospects that, individually or in the aggregate, constitutes a Company Material Adverse Effect; (b) suffered any material loss, damage or destruction to any of its material assets; (c) incurred any indebtedness for liabilities incurred borrowed money or guaranteed any such indebtedness; (d) changed, in connection with this Agreement and any material respect, its accounting methods, principles or practices except as expressly permitted required by changes in GAAP; (e) sold or contemplated by otherwise transferred any material assets, except in the ordinary course of business; (f) declared, set aside or paid any dividend or other distribution with respect to its outstanding capital stock or other equity interests, or repurchased or redeemed or otherwise acquired any outstanding capital stock or other equity interests; (g) made or changed any material tax election or settled any material tax claims, in each case, other than in the ordinary course of business; (h) granted any increase in the compensation payable or to become payable to any officers, directors, or key employees, or agents or consultants other than in the ordinary course of business; or (i) entered into any agreement to take any of the actions referred to in clauses (c) through (h) of this Agreement, since December 31, 2009 sentence. Since date of the Latest Balance Sheet the Company and each of its Subsidiaries have conducted their its respective businesses only business in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitypractices.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Acer Inc), Agreement and Plan of Merger (Gateway Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except its Reports filed prior to the date hereof or as expressly contemplated or permitted or contemplated by this Agreement, since December 31, 2009 the Company Audit Date it and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than according to, the ordinary and usual course consistent with past practice, of such businesses and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (ii)any change in the financial condition, properties, prospects, business or results of operations of it and its Subsidiaries, except those changes that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect on it; (ii) any damage, destruction or other casualty loss with respect to any asset or property owned, leased or otherwise used by it or any of its Subsidiaries, whether or not covered by insurance, which damage, destruction or loss is reasonably likely, individually or in the aggregate, to have a Material Adverse Effect on it; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cashrespect of its capital stock, except publicly announced regular quarterly cash dividends on its common stock or property) with respect to and, in the case of SBC, any dividends in capital stock of SBC which are simultaneously taken into account in an adjustment to the Exchange Ratio pursuant to Section 4.4; or (iv) any change by it in accounting principles, practices or methods, except as required by GAAP. Since the Audit Date, except as provided for herein, in the Company or any of its SubsidiariesDisclosure Letter, other than any declaration setting aside or payment from a wholly owned Subsidiary of as disclosed in the Reports filed by the Company prior to the Companydate hereof or permitted hereby, (ii) there has not been any purchaseincrease in the salary, redemption wage, bonus or other acquisition compensation payable or that could become payable by the Company or any of its Subsidiaries to directors, officers or key employees or any amendment 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 Compensation and Benefit Plans (as defined in Section 5.1(h)(i)) other than acquisitions of Shares increases or amendments in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityordinary course.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ameritech Corp /De/), Agreement and Plan of Merger (SBC Communications Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection the Company Reports -------------------------- filed with the SEC prior to the date of this Agreement and except or as expressly permitted or contemplated by this Agreementdisclosed in Schedule 4.8 of the Pacific Disclosure Letter, since December 31, 2009 1998, the ------------ Company and each Subsidiary has conducted its Subsidiaries have conducted their respective businesses business only in the ordinary course of such business consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any event or events which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock or any other securities Capital Stock of the Company or any of its Subsidiaries or any options, warrants, calls redemption or rights to acquire repurchase of any shares of such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon)Capital Stock, (iii) any splitmaterial change in the accounting principles, combination practices or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset methods of the Company or any of its Subsidiaries, (iv) any increase in the salaries or other compensation payable to any officer, director or employee of the Company or any of its Subsidiaries (except for normal increases in the ordinary course of business consistent with past practice) or any increase in, or addition to, other benefits to which such officer, director or employee may be entitled (except as required by the terms of plans as in effect on the date of this Agreement and which are listed on Schedule 4.8 of the Pacific Disclosure Letter or as required by law), (v) any ------------ incurrence by the Company or any of its Subsidiaries of indebtedness for borrowed money (except in the ordinary course of business consistent with past practice), (vi) any material adverse change or threat of a material adverse change in the Company's or any of its Subsidiaries' relations with, or any loss or threat of loss of, any of the Company's or its Subsidiaries' important suppliers or customers, (vii) any termination, cancellation or waiver of any contract or other right material to the operation of the business of the Company and its Subsidiaries taken as a whole or (viii) any material damage, destruction or loss, whether or not covered by insurance, that would have a Company Material Adverse Effectadversely affecting the properties, (v) any change in accounting methodsassets, principles business or practices by prospects of the Company materially affecting and its assetsSubsidiaries taken as a whole, liabilities or businesses, except insofar as may have been required by a change any deterioration in GAAP or (vi) except with respect to depreciation and amortization the operating condition of the assets of the Company and its Subsidiaries which would, individually or any of in the aggregate, be material to the Company or its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySubsidiaries taken as a whole.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Technical Olympic Usa Inc), Stock Purchase Agreement (Pacific Usa Holdings Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by From September 30, 2001 (the "Company Balance Sheet Date") through the date of this Agreement, since December 31, 2009 the Company and has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred, except as set forth in Section 3.6 of the Company Disclosure Schedule or as specifically contemplated by this Agreement: (i) any change, event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect with respect to the Company; (ii) any acquisition, sale or transfer of any material asset of the Company other than in the ordinary course of business and consistent with past practice; (iii) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its assets, in each case, other than as required by changes in generally accepted accounting principles or other applicable principles of accounting or auditing; (iv) any declaration, setting aside aside, or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to any capital stock the shares of the Company or any of its Subsidiariesdirect or indirect redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption purchase or other acquisition by the Company or of any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, ; (v) any Material Contract entered into by the Company, other than in the ordinary course of business and as provided to NetRatings, or any material amendment or termination of, or default under, any Material Contract; (vi) any amendment or change to the certificate of incorporation or bylaws of the Company; (vii) any increase in accounting methods, principles or practices modification of the compensation or benefits payable or to become payable by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiariesdirectors or employees, other than in the ordinary course of business consistent with past practice; or (viii) any material Tax election negotiation or change agreement by the Company to do any of the things described in such electionthe preceding clauses (i) through (vii) (other than negotiations with NetRatings and its representatives regarding the transactions contemplated by this Agreement). At the Effective Time, any change in material method there will be no accrued but unpaid dividends on shares of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythe Company's capital stock.
Appears in 2 contracts
Samples: Services Agreement (Netratings Inc), Services Agreement (Netratings Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSection 3.9 of the Disclosure Letter, since December March 31, 2009 2001, neither the Company nor any Subsidiary has (a) experienced any change, event or condition which, individually or in the aggregate, has had or reasonably would be expected to have a Company Material Adverse Effect; provided, however, that none of the following shall be deemed to constitute and none of the following shall be taken into account in determining whether there has been or will be a Company Material Adverse Effect: (A) any adverse change or effect (including any loss of employees, cancellation of, modification of, or delay in customer orders, or disruption, modification or termination of business relationships) including, without limitation, that relationship with Motorola, Inc.) arising from or relating to (1) changes that generally affect the industries and markets in which the Company and its Subsidiaries have operate, or result from general political, economic or market conditions or general conditions in the economy or financial markets, or (2) the announcement or pendency of the Merger or the other transactions contemplated by this Agreement; (B) any litigation or threat of litigation filed or made after the date hereof challenging any of the transactions contemplated herein or any shareholder litigation filed or made after the date hereof resulting from this Agreement or the transactions contemplated herein; or (C) the increase or decrease in the Company's stock price or trading volume as quoted on NASDAQ; (b) conducted their respective businesses only its business other than in the ordinary course of business consistent with past practicepractices, and (c) incurred any indebtedness for borrowed money (excluding trade credit incurred in the Company has ordinary course of business consistent with past practices) or issued any debt securities or assumed, guaranteed or endorsed the obligations of any other Person, (d) other than sales or dispositions of inventory in the ordinary course of business sold, transferred or otherwise disposed of any of its property or assets, (e) mortgaged or encumbered any of its property or assets, (f) suffered any material casualty losses not suffered a Company Material Adverse Effectcovered by insurance, and since December 31(g) repurchased, 2009 there has not been redeemed or otherwise acquired any of its capital stock or any capital stock of any of the Subsidiaries, (ih) any declarationdeclared, setting set aside or payment of paid any dividend or other distribution in respect of its capital stock, (whether in cashi) amended its Certificate of Incorporation or Bylaws (or similar organizational documents) or merged with or into or consolidated with any other Person, stock (j) split, combined or propertyreclassified its capital stock, (k) with respect issued or sold (or agreed to any capital stock of the Company issue or sell) any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock or any other equity securities of the Company or any of its Subsidiaries or any options, warrants, calls conversion or other rights to acquire purchase any such shares securities or other any securities (convertible into or exchangeable for such securities, or granted, or agreed to grant any such rights, other than acquisitions grants, sales or issuances pursuant to Company Stock Options consistent with past practices (including as to amounts and extents) outstanding on the date of Shares this Agreement, (l) increased the rates of compensation (including bonuses) payable or to become payable to any of its officers, directors, employees, agents, independent contractors or consultants other than customary merit raises made in connection the ordinary course of business consistent with the surrender of Shares by holders of Options, RSUs or Warrants in order past practices (including as to pay the exercise price thereof or the taxes thereonamounts and extent), (iiim) entered into any splitnew, combination or reclassification amended any existing, employment contracts, severance agreements or consulting contracts or instituted or agreed to institute any increase in benefits or altered its employment practices or the terms and conditions of any capital stock of employment, (n) except as otherwise required by law and as disclosed on the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect ofFinancial Statements, changed, in lieu of any material respect its underwriting, actuarial or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in Tax accounting methods, principles or practices by the Company materially affecting its assetspractices, liabilities (o) entered into any joint ventures or businessespartnerships of any kind, except insofar as may have been required by a change in GAAP or (vip) except with respect entered into any material contract, agreement, understanding or arrangement to depreciation and amortization do any of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityforegoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Netspeak Corp), Agreement and Plan of Merger (Net2phone Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December 31, 2009 1999, the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than in accordance with, the ordinary and usual course consistent with past practice, and the Company has not suffered a Company Material Adverse Effectof these businesses, and since December 31, 2009 1999 there has not been (i) any change in the financial condition, properties, business or results of operations of the Company and its Subsidiaries except those changes that, individually or in the aggregate, have not had and would not have a Material Adverse Effect on the Company; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with property in respect to any of the Company's capital stock or any securities convertible, exchangeable or exercisable for or into shares of its capital stock, except for (w) regular quarterly cash dividends of no more than U.S. $.025 per Company Common Share, (x) dividends in respect of the Company or any of its SubsidiariesMoney Market Preferred Shares in accordance with their terms, other than any declaration setting aside or payment from a wholly owned Subsidiary and (y) interest payments in respect of the Company to the Company, Convertible Notes in accordance with their terms; (iiiii) any purchaseredemption, redemption repurchase or other acquisition of any shares of the Company's capital stock or any securities convertible, exchangeable or exercisable for or into shares of its capital stock (other than as required by the terms of any Company Stock Plan and other than repurchases of Company Money Market Preferred Shares for not more than the Preferred Consideration per share), or (iv) any change by it in accounting principles, practices or methods except as required by changes in U.S. GAAP. Between December 31, 1999 and the date of this Agreement, except as contemplated by this Agreement, there has not been any increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries to officers or key employees, other than increases in the ordinary and usual course of business, and the Company has not entered into or amended any shares of capital stock its compensation or any other securities benefit plans or agreements, including severance, change of control or similar plans and agreements. Since December 31, 1999, the Company has granted awards under its performance share plan implemented pursuant to the Company's 1997 Incentive Compensation Plan and under similar plans to the categories of persons with the terms (including performance targets) applicable to these awards set forth in Section 2.1.6 of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock Disclosure Schedule. Section 2.1.6 of the Company or any of its Subsidiaries or any issuance or Disclosure Schedule sets forth the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset estimated total value of the Company or any awards payable solely as a result of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change of control and the amount reflected in GAAP or (vi) except with respect the Company's budget for 2000 previously delivered to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Young & Rubicam Inc), Agreement and Plan of Merger (WPP Group PLC)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementset forth on Schedule 2.5, since December 31March 29, 2009 1998 (the Company "Target Balance Sheet Date"), Target and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that, that would have individually or in the aggregate, has resulted in a Company Material Adverse EffectEffect on Target; (ii) any acquisition, sale or transfer of any material asset by Target or any of its Subsidiaries other than (vA) for consideration of less than $250,000 in any one transaction in the ordinary course of business and consistent with past practice or (B) sales of inventory in the ordinary course of business; (iii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or (viamortization policies or rates) except with respect to depreciation and amortization by Target or its Subsidiaries or any revaluation by Target of the assets any of the Company its or any of its Subsidiaries' assets; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of Target, or any direct or indirect redemption, purchase or other acquisition by Target of any of its shares of capital stock; (v) any entrance by Target or its Subsidiaries into any material Contract not made in the ordinary course of business, or any material amendment or termination (not made in the ordinary course of business) of, or default under, any material Tax election Contract to which Target or any of its Subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Articles of Incorporation or Bylaws of Target or organizational documents of any of its Subsidiaries; or (vii) any increase in such election, any change in material method or modification of accounting for Tax purposes the base compensation payable or to become payable by Target or any settlement of its Subsidiaries to any of their directors or compromise officers (or equivalent positions) or employees, except for such increase or modification as would not result in an increase in excess of ten percent (10%) in the base compensation annualized over the next twelve (12) months payable or to be payable to any material income Tax liabilityemployee who had an annual rate of base compensation of over $50,000 as of the later of the date of hire or March 29, 1998. Except as set forth in Schedule 2.5, Target and its Subsidiaries have not agreed since March 29, 1998 to do any of the things described in the preceding clauses (i) through (vii) and is not currently involved in any negotiations to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with Acquiror and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Amerilink Corp), Agreement and Plan of Reorganization (Tandy Corp /De/)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince the Audit Date, since December 31, 2009 the Company and its Subsidiaries taken as a whole have conducted their respective businesses business only in the ordinary and usual course consistent with past practice, of such business and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any change in the financial condition, business, assets, liabilities, or results of operations of the Company and its Subsidiaries that has had or would be reasonably likely to have a Company Material Adverse Effect; (ii) any material damage, destruction or other casualty loss with respect to any material asset or material property owned, leased or otherwise used by the Company or any of its Subsidiaries, not covered by insurance; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries Subsidiary of any shares of capital stock or any other securities of the Company other than (A) regular quarterly dividends on Shares in the ordinary course (including any periodic increase thereon consistent with past practice) not to exceed $.225 per Share and (B) as expressly contemplated by this Agreement; or (iv) any change by the Company in accounting principles, practices or methods which is not required by a change in GAAP. Since the Audit Date and through the date hereof, except as provided for herein or as disclosed in the Company Reports, there has not been any material increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries to officers or key employees or any options, warrants, calls or rights to acquire such shares or other securities material amendment of any of the Compensation and Benefit Plans (as defined in Section 5.1(h)(i)) other than acquisitions increases or amendments in the ordinary course of Shares in connection business consistent with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitypast practice.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nisource Inc), Agreement and Plan of Merger (Nisource Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except Section 2.5 of the Company Disclosure Schedule or as expressly permitted or contemplated by this Agreementdescribed in the Company SEC Documents, since December 31September 30, 2009 2004 (the “Company Balance Sheet Date”), the Company and has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company there has not suffered occurred: (i) any change, event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in, a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (iii) any declarationacquisition, setting aside sale or payment transfer of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock material asset of the Company or any of its Subsidiaries, Subsidiaries other than in the ordinary course of business and consistent with past practice; (iii) any declaration change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its or any of its Subsidiaries’ assets; (iv) any declaration, setting aside aside, or payment from of a wholly owned Subsidiary dividend or other distribution with respect to the shares of the Company to the Company, (ii) or any purchasedirect or indirect redemption, redemption purchase or other acquisition by the Company of any of its shares of capital stock other than the purchase of unvested shares upon employment or service termination; (v) any entering into by the Company or any of its Subsidiaries of any shares of capital stock material contract or agreement, or any material amendment or termination of, other securities than in the ordinary course of business, or default by the Company or any of its Subsidiaries under, any material contract or any options, warrants, calls or rights agreement to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of which the Company or any of its Subsidiaries is a party or any issuance or by which it is bound (or, to the authorization Knowledge of any issuance of the Company, by any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, party thereto); (ivvi) any damageamendment or change to the Certificate of Incorporation or Bylaws; or (vii) any increase in or modification of the compensation or benefits payable, destruction or loss to become payable, by the Company to any asset of its directors, consultants or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in the ordinary course of business and consistent with the Company’s past practices. Except as set forth in Section 2.5 of the Company Disclosure Schedule or as described in the Filed Company SEC Documents, the Company has not agreed since September 30, 2004 to effect any changes, events, or conditions or take any of its Subsidiaries, whether or the actions described in the preceding clauses (i) through (vii) and is not covered by insurance, that would have a Company Material Adverse Effect, (v) currently involved in any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect negotiations to depreciation and amortization do any of the assets of things described in the Company or any of preceding clauses (i) through (vii) (other than negotiations with Parent and its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityrepresentatives regarding the Contemplated Transactions).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Copper Mountain Networks Inc), Agreement and Plan of Merger and Reorganization (Tut Systems Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except Since the Balance Sheet Date (as expressly permitted hereinafter defined), no event has occurred that has had or contemplated by this Agreement, since December 31, 2009 the Company and its Subsidiaries could have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect. Since the Balance Sheet Date, and since December 31, 2009 there has not been been, directly or indirectly, (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cashrespect of the Target Common Shares, stock or property) with respect to any return of any capital stock or other distribution of the Company assets to shareholders, or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any Target of its 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 Target Common Shares or other securities or obligations of Target; (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiiii) any split, combination or reclassification of any capital stock of the Company significant change by Target or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change Subsidiary in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP generally accepted accounting principles, (iii) any direct or indirect material purchase or other acquisition of stock of any individual or entity of any kind or nature (vicollectively, “person” or “Person”), or any direct or indirect loan, advance (other than advances to employees for travel or entertainment expenses in the ordinary course of business) except or capital contribution to any person, (iv) a grant of any general increase in the compensation of its officers or employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or any increase in the compensation payable or to become payable to any such officer or employee; and (v) any agreement to take, whether in writing or otherwise, any action which would make or have made any representation or warranty in this Article 4 untrue or incorrect. Since the Balance Sheet Date, Target and its Subsidiaries have conducted their respective businesses only in the ordinary and usual course consistent with respect to depreciation and amortization of past practice. Since the assets of the Company or Balance Sheet Date, neither Target nor any of its SubsidiariesSubsidiaries have (A) sold, assigned or transferred any of its tangible assets except in the ordinary course of business, or canceled any debt or claim, except for write-offs in the ordinary course of business consistent with past practices, (B) suffered any loss of property or waived any right whether or not in the ordinary course of business, except where such loss or waiver would not have a Material Adverse Effect, (C) (i) granted any severance or termination pay to any of its directors, officers, employees or consultants, (ii) increased any benefits payable under any existing severance or termination pay policies or employment agreements, or (iii) increased the compensation, bonus or other benefits payable to any of its directors, officers, consultants or employees, (D) made any material Tax election or change in such electionthe manner of its business or operations, (E) entered into any change transaction except in material method the ordinary course of accounting for Tax purposes business or as otherwise contemplated hereby or (F) entered into any settlement commitment (contingent or compromise otherwise) to do any of any material income Tax liabilitythe foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Platinum Energy Resources Inc), Agreement and Plan of Merger (Platinum Energy Resources Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and Since March 31, 2000, except as expressly permitted or contemplated by this Agreementthe Disclosure Schedule, since December 31, 2009 the Company and Acquiror has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment condition in the business or condition of any dividend or other distribution Acquiror (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that would have or might reasonably be expected to result in, a Company Material Adverse EffectEffect to Acquiror; (ii) any acquisition, sale or transfer of any material asset of Acquiror other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Acquiror or any revaluation by Acquiror of any of its assets; (iv) any declaration, liabilities setting aside, or businesses, except insofar as may have been required by payment of a change in GAAP dividend or (vi) except other distribution with respect to depreciation and amortization the shares of the assets Acquiror or any direct or indirect redemption, purchase or other acquisition by Acquiror of the Company any of its shares of capital stock; (v) any material contract entered into by Acquiror or any of its Subsidiariessubsidiaries, or any material amendment or termination of, or default under, any material Tax election contract to which Acquiror or any of its subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Certificate of Incorporation or Bylaws of Acquiror; (vii) any increase in such election, or modification of the compensation or benefits payable or to become payable by Acquiror to any change in material method of accounting for Tax purposes its directors or employees; or (viii) any negotiation or agreement by Acquiror or any settlement or compromise of its subsidiaries to do any material income Tax liabilityof the things described in the preceding clauses (i) through (vii) (other than negotiations with Target and its representatives regarding the transactions contemplated by this Agreement). At the Effective Time, there will be no accrued but unpaid dividends on shares of Acquiror's capital stock.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Autoinfo Inc), Agreement and Plan of Reorganization (Wachtel Harry M)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement the Company Reports filed prior to the date hereof or in Company press releases or other public announcements prior to the date hereof (the "Public Announcements") or as set forth in Section 4.7 or Section 4.8 of the Company Disclosure Schedule and except as expressly permitted otherwise provided in or contemplated by this Agreement, since December 31, 2009 1998 (the "Company Audit Date"), the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than according to, the ordinary and usual course of such businesses and there has not been: (a) any change in the ordinary course consistent with past practicefinancial condition, and properties, business or results of operations of the Company and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has not suffered had or is reasonably likely to result in a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (ib) any declarationmaterial damage, setting aside or payment of any dividend destruction or other distribution (whether in cash, stock or property) casualty loss with respect to any capital stock of the Company material asset or any of its Subsidiariesproperty owned, other than any declaration setting aside leased or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition otherwise used by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance; (c) any authorization, that would have a Company Material Adverse Effectdeclaration, setting aside or payment of any dividend or other distribution in respect of the capital stock of the Company, except as permitted by Section 6.1 hereof; (vd) any change in accounting methods, principles or practices by the Company materially affecting its assetsin accounting principles, liabilities practices or businessesmethods other than as required by changes in applicable GAAP or statutory accounting principles; (e) any material addition to the Company's consolidated reserves for unpaid losses and loss adjustment expenses prior to the date of this Agreement; (f) any material change in the accounting, actuarial, investment, reserving, underwriting or claims administration policies, practices, procedures, methods, assumptions or principles of any Company Insurance Subsidiary; or (g) any repurchase or redemption of any Shares. Since the Company Audit Date, except insofar as may have been required by a change provided for herein or as disclosed in GAAP the Company Reports or (vi) except with respect Public Announcements filed or made prior to depreciation and amortization the date hereof or as set forth in Section 4.7 of the assets of Company Disclosure Schedule, there has not been any increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries, any material Tax election Subsidiaries to officers at the senior vice president level or change in such election, any change in material method of accounting for Tax purposes above or key employees or any settlement or compromise amendment of any material income Tax liabilityof the Company Compensation and Benefit Plans (as defined in Section 4.9(a)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ace LTD), Agreement and Plan of Merger (Capital Re Corp)
Absence of Certain Changes. Except for liabilities as disclosed in the 1999 10-KSB, the September 1999 10-QSB, in Section 3.10 of the Seller Disclosure Schedule, or incurred hereinafter in connection the ordinary course of business consistent with this Agreement past practice and except as expressly permitted or contemplated by this Agreementwith Section 5.01 hereof, since December March 31, 2009 1999, (i) the Company business of each of Seller and its Subsidiaries have has been conducted their respective businesses only in the ordinary course consistent with past practicepractices, and the Company (ii) there has not suffered been any change in the business, assets, financial condition or results of operations of Seller and its Subsidiaries, (iii) there has not been any change in any policy or practice followed by Seller nor its Subsidiaries in the ordinary course of business except for changes which have not had and are not likely to have a Company Material Adverse Effect, and since December 31, 2009 (iv) there has not been any material agreement, contract or commitment entered into, or agreed to be entered into, except for those in the ordinary course of business; (iv) there has not been any declarationincrease in or establishment of any bonus, setting insurance, severance (including severance after a change in control), deferred compensation, pension, retirement, profit sharing, life insurance or split dollar life insurance, retiree medical or life insurance, or other employee benefit plan, or any other increase in the compensation payable or to become payable to any officers or key employees of Seller or its Subsidiaries, except with respect to cash compensation, in the ordinary course of business consistent with past practice; (vi) there has not been any change in any of the accounting methods or practices of Seller and its Subsidiaries other than changes required by applicable law or applicable accounting policies; and (viii) neither Seller nor its Subsidiaries has declared, paid or set aside or for payment of any dividend or other distribution (whether in cash, respect of its capital stock or property) with respect to any capital stock of the Company redeemed, purchased or any of its Subsidiariesotherwise acquired, other than any declaration setting aside directly or payment from a wholly owned Subsidiary of the Company to the Companyindirectly, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock or any other securities of the Company Seller or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySubsidiary.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Optical Security Group Inc), Agreement and Plan of Merger (Applied Opsec Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December Since May 31, 2009 1999 (the Company and "Target Balance Sheet Date"), Target has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that would have or might reasonably be expected to result in, a Company Material Adverse EffectEffect to Target; (ii) any acquisition, sale or transfer of any material asset of Target other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Target or any revaluation by Target of its assets; (iv) any declaration, liabilities setting aside, or businessespayment of a dividend or other distribution with respect to the shares of Target, except insofar or any direct or indirect redemption, purchase or other acquisition by Target of any of its shares of capital stock; (v) any material contract entered into by Target, other than in the ordinary course of business and as may have been required provided to Acquiror, or any material amendment or termination of, or default under, any material contract to which Target is a party or by a change in GAAP or which it is bound; (vi) any amendment or change to the Articles of Incorporation or Bylaws or, except as contemplated by Section 2.16 hereof, the Target Rights Agreement of Target; or (vii) any increase in or modification of the compensation or benefits payable or to become payable by Target to any of its directors or employees. Other than with respect to depreciation the stock option and amortization incentive plans described in Target's proxy statement for the annual meeting of its shareholders held on January 18, 1999 or as disclosed on Section 2.15 of the assets Target Disclosure Schedule, Target has not agreed since the Target Balance Sheet Date to do any of the Company or things described in the preceding clauses (i) through (vii) and is not currently involved in any negotiations to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with Acquiror and its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityrepresentatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Premier Laser Systems Inc), Agreement and Plan of Reorganization (Ophthalmic Imaging Systems Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince November 30, since December 312006 (the "Target Balance Sheet Date"), 2009 the Company and Target has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred (ia) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that or would have reasonably be expected to result in, a Company Material Adverse EffectEffect on Target; (b) any acquisition, sale or transfer of any material asset of Target other than in the ordinary course of business and consistent with past practice; (vc) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Target or any revaluation by Target of any of its assets; (d) any declaration, liabilities setting aside, or businesses, except insofar as may have been required by payment of a change in GAAP dividend or (vi) except other distribution with respect to depreciation and amortization the shares of the assets Target or any direct or indirect redemption, purchase or other acquisition by Target of the Company or any of its Subsidiariesshares of capital stock; (e) any Material Contract entered into by Target, other than in the ordinary course of business and as provided to Acquiror, or any material amendment or termination of, or default under, any material Tax election Material Contract (as defined in Section 3.13) to which Target is a party or by which it is bound; (f) any amendment or change to the Certificate of Incorporation or Bylaws of Target; (g) any increase in such electionor modification of the compensation or benefits payable or to become payable by Target to any of its directors, executive officers, or, other than in the ordinary course of business, employees; or (h) any change negotiation or agreement by Target to do any of the things described in material method the preceding clauses (a) through (g) (other than negotiations with Acquiror and its representatives regarding the transactions contemplated by this Agreement). At the Effective Time, there will be no accrued but unpaid dividends on shares of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityTarget's capital stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Convio, Inc.), Agreement and Plan of Merger (Convio, Inc.)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection the Company Reports filed with the SEC prior to the date of this Agreement and except or as expressly permitted or contemplated by this Agreement, since December 31, 2009 the Company Balance Sheet Date (as defined below) the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction other than according to, the ordinary course of such businesses consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any change in the financial condition, properties, business or results of operations of the Company and its Subsidiaries or any development or combination of developments of which management of the Company has Knowledge that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect or prevent or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement; (ii) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with property in respect to any of the capital stock of the Company, except for dividends or other distributions on its capital stock publicly announced prior to the date of this Agreement and except as expressly permitted hereby; (iv) any change by the Company in accounting principles or any of its Subsidiariesmaterial accounting practices or methods; (v) except as provided for herein, other than any declaration setting aside increase in the compensation payable or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition that could become payable by the Company or any of its Subsidiaries to officers or key employees or any amendment of any shares of capital stock the Company Compensation and Benefit Plans (as defined in Section 5.1(i)) other than increases or amendments in the ordinary course; or (vi) any action that, if it would have occurred immediately after the date of this Agreement, would have violated or been inconsistent with, the provisions of Section 6.1(a) (provided, that solely for purposes of this Section 5.1(f)(vi), Section 6.1(a)(i)(N)(II) shall only apply to employment, severance or deferred compensation agreements with (A) any officer or director of the Company or (B) any other securities employee of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.an annual base salary in
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Usf Corp), Agreement and Plan of Merger (Yellow Roadway Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementset forth on Schedule 2.6 of the Disclosure Schedule, since December 31the Target Balance Sheet Date, 2009 the Company Target and Predecessor have each conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Material Adverse Effect to Target or Predecessor; (ii) any acquisition, sale or transfer of any asset of Target or Predecessor other than in the ordinary course of business and consistent with past practice or that would have a Company Material Adverse Effect, ; (viii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or amortization policies or rates) by Target or Predecessor or any revaluation by Target or Predecessor of any of Target’s or Predecessor’s assets; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of Target or membership interests of Predecessor or any direct or indirect redemption, purchase or other acquisition by Target of any of its Target Shares or by Predecessor of its membership interests; (v) any Material Contract entered into by Target or Predecessor, other than in the ordinary course of business and as provided to Acquiror, or any amendment or termination of, or default under, any Material Contract to which Target or Predecessor is a party or by which either of them is bound; (vi) except with respect any amendment or change to depreciation and amortization the charter documents of Target or the charter documents of Predecessor; (vii) any increase in or modification of the assets of the Company compensation or benefits paid, payable or to become payable by Target or Predecessor to any of its Subsidiariesmanagers, officers or employees; (viii) any reduction in the sales of Target or Predecessor to, or significant detrimental change in terms with, any material Tax election customer for the twelve month period beginning on the Closing and ending on the one-year anniversary of the Closing as compared to the same time period during the previous year or change (ix) any negotiation or agreement by Target or Predecessor to do any of the things described in such electionthe preceding clauses (i) through (viii) (other than in connection with (A) the Reorganization, any change in material method and (B) negotiations with Merger Sub, Acquiror and their representatives regarding the transactions contemplated by this Agreement). As of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityClosing, there will be no accrued but unpaid dividends on the Target Shares.
Appears in 2 contracts
Samples: And Restated Agreement and Plan of Merger (Catcher Holdings, Inc), Escrow Agreement (Catcher Holdings, Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except the Company SEC Reports or as expressly permitted or contemplated by this Agreementset forth in SECTION 3.9 OF THE COMPANY DISCLOSURE LETTER, since December 31, 2009 2002, the Company and its Subsidiaries have conducted their respective businesses business only in the ordinary course of such business consistent with past practicepractices, and the Company there has not suffered been: (i) any event or state of fact that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any the capital stock of the Company or any of its Subsidiaries, other than Subsidiaries or any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries; (iii) any material change by the Company in its accounting methods, principles or practices; (iv) any revaluation by the Company or any of its Subsidiaries of any shares of capital stock their respective 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; (v) any other securities damage, destruction or loss (whether or not covered by insurance) of any of the material properties or assets of the Company or and its Subsidiaries; (vi) any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (increase in indebtedness for borrowed money other than acquisitions an increase as a result of Shares borrowings incurred in connection with the surrender ordinary course of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), business; (iiivii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in -10- respect of, in lieu of or in substitution for shares of their respective the capital stock, stock of the Company; or (ivviii) any damage, destruction agreement or loss commitment (contingent or otherwise) to take any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, actions set forth in clauses (vi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or through (vivii) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityabove.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Integrated Defense Technologies Inc), Agreement and Plan of Merger (Integrated Defense Technologies Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementset forth on SCHEDULE 5.6, since December 31, 2009 1995 the Company Seller, VWS and its Subsidiaries VSI have conducted their respective businesses carried on the VECTRA Waste Business only in the ordinary course consistent with past practicecourse, and the Company there has not suffered been, insofar as it relates to the VECTRA Waste Business or the Acquired Waste Business Assets: (a) any change in the assets, liabilities, sales, income or business of any of the Seller, VWS or VSI or in their relationships with suppliers, customers or lessors, other than changes which were both in the ordinary course of business and have not resulted in, either in any case or in the aggregate, a Company Material Adverse Effect, and since December 31, 2009 there has not been ; (ib) any declarationacquisition or disposition by any of the Seller, setting aside VWS or payment VSI of any dividend asset or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, property other than any declaration setting aside or payment from a wholly owned Subsidiary in the ordinary course of the Company to the Company, business; (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (ivc) any damage, destruction or loss to any asset of the Company or any of its Subsidiariesloss, whether or not covered by insurance, that would have a Company Material Adverse Effectmaterially and adversely affecting, either in any case or in the aggregate, the Acquired Waste Business Assets or the VECTRA Waste Business; (vd) except for any increases or payments reflected in the year to date gross wages reflected on SCHEDULE 5.14, any increase in the compensation, pension or other benefits payable or to become payable by any of the Seller, VWS or VSI to any of the employees listed on SCHEDULE 5.14, or any bonus payments or arrangements made to or with any of them (other than pursuant to the terms of any existing written agreement or plan of which the Buyer has been supplied complete and correct copies of); (e) any change entry by any of the Seller, VWS or VSI into any transaction other than in accounting methodsthe ordinary course of business; or (f) any incurrence by any of the Seller, principles VWS or practices by the Company materially affecting its assetsVSI of any obligations or liabilities, whether absolute, accrued, contingent or otherwise (including, without limitation, liabilities as guarantor or businesses, except insofar as may have been required by a change in GAAP or (vi) except otherwise with respect to depreciation obligations of others), other than obligations and amortization liabilities incurred in the ordinary course of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitybusiness.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Molten Metal Technology Inc /De/), Asset Purchase Agreement (Vectra Technologies Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since Since December 31, 2009 2002 (the Company and "Measurement Date"), except as set forth on Schedule 3.6, Seller has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a Material Adverse Effect to Seller; (ii) any acquisition, sale or transfer of any asset of Seller that would have a Company Material Adverse Effect, Effect other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Seller or any revaluation by Seller of any of its assets; (iv) any declaration, liabilities setting aside, or businessespayment of a dividend or other distribution with respect to the shares of Seller or any direct or indirect redemption, except insofar purchase or other acquisition by Seller of any of its shares of capital stock; (v) any Material Contract (as may such term is defined in Section 3.11) entered into by Seller, other than in the ordinary course of business and as provided to Kintera or Purchaser, or any amendment that would have been required a Material Adverse Effect or termination of, or default under, any Material Contract to which Seller is a party or by a change in GAAP or which it is bound; (vi) except with respect any amendment or change to depreciation and amortization the charter documents of Seller; (vii) any increase in or modification of the assets of the Company compensation or benefits paid, payable or to become payable by Seller to any of its Subsidiariesdirectors, officers or employees; (viii) any material Tax election reduction in the sales of Seller to or significant detrimental change in such electionterms with any customer year-to-date through June 30, 2003 as compared to the same time period last year or (ix) any change negotiation or agreement by Seller to do any of the things described in material method the preceding clauses (i) through (viii) (other than negotiations with Purchaser, Kintera and their representatives regarding the transactions contemplated by this Agreement). As of accounting for Tax purposes or any settlement or compromise Closing, there will be no accrued but unpaid dividends on member interests of any material income Tax liabilitySeller's capital stock.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Kintera Inc), Asset Purchase Agreement (Kintera Inc)
Absence of Certain Changes. Except for liabilities as set forth on -------------------------- Schedule 4.11 or disclosed in any SEC Filings or the June 10-Q, since December ------------- 31, 1996: (i) there has not been any event or occurrences, or series of events or occurrences, which have had, or may have, a Material Adverse Effect on the Company, (ii) neither the Company nor any of its Subsidiaries has incurred any liability or engaged in connection any transaction that is material to the Company and its Subsidiaries taken as a whole, or entered into any Material Agreement, except in the ordinary course of business consistent with this Agreement and except past practice, or as expressly permitted or contemplated by this Agreement, since December 31, 2009 (iii) neither the Company and nor any of its Subsidiaries have conducted their respective businesses only is in default under (and no event has occurred which with the ordinary course consistent with past practicelapse of time or action by a third party could result in a default under) any Material Agreement, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 (iv) 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 the Preferred Stock or the Existing Preferred Stock, (v) there has not been any commitment, contractual obligation, borrowing, capital stock of expenditure or transaction (each, a "Commitment") ---------- entered into by the Company or any of its Subsidiaries, other than any declaration setting aside Commitments which would not, individually or payment from in the aggregate, reasonably be expected to result in a wholly owned Subsidiary of the Company to Material Adverse Effect on the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, there has not been any change in material method of the Company's accounting for Tax purposes principles, practices or any settlement methods which would, individually or compromise of any material income Tax liabilityin the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Prometheus Homebuilders Funding Corp), Stock Purchase Agreement (Prometheus Homebuilders Funding Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since Since December 31, 2009 1998 (the Company and "Omega Balance Sheet Date"), Omega has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred except as otherwise disclosed in the Omega SEC Documents: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that or would have reasonably be expected to result in, a Company Material Adverse EffectEffect on Omega; (ii) any acquisition, sale or transfer of any material asset of Omega or any of its subsidiaries other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or (viamortization policies or rates) except with respect to depreciation and amortization by Omega or any revaluation by Omega of the assets any of the Company its or any of its Subsidiariessubsidiaries' assets; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of Omega, or any direct or indirect redemption, purchase or other acquisition by Omega of any of its shares of capital stock; (v) any material contract entered into by Omega or any of its subsidiaries, other than in the ordinary course of business and as provided to Online, or any material amendment or termination of, or material default under, any material Tax election contract to which Omega or any of its subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Articles of Incorporation or Bylaws of Omega; (vii) any material increase in such electionor material modification of the compensation or benefits payable or to become payable by Omega to any of its directors, officers or employees (except in the case of employees (other than officers) increases in the ordinary course of business consistent with past practices; (viii) any material change in material method the interest rate risk management and hedging policies, procedures or practices of accounting for Tax purposes Omega or any settlement of its subsidiaries, or compromise any failure to comply with such policies, procedures and practices; or (ix) any negotiation or agreement by Omega or any of its subsidiaries to do any material income Tax liabilityof the things described in the preceding clauses (i) through (viii) (other than negotiations with Online and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Onlinetradinginc Com Corp), Agreement and Plan of Merger and Reorganization (Onlinetradinginc Com Corp)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 4.9 -------------------------- ------------ attached hereto, since December 31the date of the Balance Sheet, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been been: (ia) any declaration, setting aside or payment of any dividend or other distribution Material Adverse Change; (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (iib) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any material damage, destruction or loss to any asset of the Company or any of its Subsidiaries, (whether or not covered by insurance) adversely affecting the properties, that would have a Company Material Adverse EffectAssets, liabilities, financial condition or results of operations of the Division; (vc) any increase in the compensation, commissions or perquisites payable or to become payable by the Division to any employee of the Division, or any payment of any bonus, profit sharing or other extraordinary compensation to any employee of the Division (other than any such increase or payment paid or to become payable not exceeding 4% over amounts paid during the year ended December 31, 1998); (d) any cancellation of any material debts owed to or claims held by the Division or waiver of any material rights held by the Division; (e) any sale, lease, abandonment or other disposition by the Division of any real property, or, other than in the ordinary course of business and not exceeding $50,000 in the aggregate based on the book value thereof, of any machinery, equipment or other operating properties, or of any intangible assets; (f) any change in accounting methodsthe amount, principles aging or practices by collectibility of the Company materially affecting its assets, liabilities Accounts Receivable or businesses, except insofar as may have been required by a change in GAAP or (vi) except other debts due to Seller with respect to depreciation the Division or the allowances with respect thereto or accounts payable from that reflected on the Financial Statements which could reasonably be expected to have a Material Adverse Effect; or (g) any action taken by Seller which, if taken subsequent to the execution of this Agreement and amortization on or prior to the Closing Date, would constitute a breach of the assets Seller's agreements set forth in Section 6.1(a), (b), (e), (f), (g) or (h) of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythis Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Allscripts Inc /Il), Asset Purchase Agreement (Allscripts Inc /Il)
Absence of Certain Changes. Except Since the Balance Sheet Date through the date hereof, except for liabilities incurred in connection with this Agreement and except as actions expressly permitted or contemplated by this Agreement, since December 31, 2009 the business of the Company and its Subsidiaries have conducted their respective businesses only has been conducted, in all material respects, in the ordinary course consistent with past practiceof business, and with respect to the Company and its Subsidiaries there has not suffered been (a) any change or event that has had or would reasonably be expected to have a Company Material Adverse Effect, and since December 31, 2009 there has not been (ib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any its capital stock or other equity interest or any redemption, purchase or other acquisition of the Company or any of its Subsidiariescapital stock or other equity interest, other than any declaration setting aside in connection with (i) Company Stock-Based Awards, (ii) an intra-company transaction between the Company and one of its Subsidiaries or payment from between two Subsidiaries of the Company, or (iii) dissolution of a wholly owned Subsidiary of the Company to the Company, (ii) any purchasein each case, redemption or other acquisition by in the Company or any ordinary course of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon)business, (iiic) any split, combination or reclassification of any of its capital stock of the Company or any of its Subsidiaries other equity interest 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 its capital stockstock or other equity interest, other than in connection with (i) Company Stock-Based Awards, (ivii) any damage, destruction or loss to any asset of an intra-company transaction between the Company or any and one of its Subsidiaries, whether or not covered by insurance(iii) dissolution of a wholly owned Subsidiary of the Company, that would have a Company Material Adverse Effectin each case, in the ordinary course of business, (vd) any material change in accounting methods, principles or practices used by the Company materially affecting its assets, liabilities or businessesbusiness, except insofar as may have been required by a change in GAAP GAAP, (e) any amendments or (vi) except with respect to depreciation and amortization of changes in the assets charter documents or other organizational documents of the Company or any of its Subsidiaries, (f) any change in any material method of Tax accounting or material Tax compliance practices, (g) any change or rescission of any material Tax election or change in such election, (h) any change in material method of accounting for Tax purposes or any closing agreement, settlement or compromise of any claim or assessment, in each case in respect of material income Tax liabilityTaxes, or consent to any extension or waiver of any limitation period with respect to any claim or assessment for material Taxes, (i) any material acquisitions or dispositions (of assets or equity) other than in the ordinary course of business, (j) any material capital expenditures outside of the ordinary course of business, (k) entry into any arrangements regarding material Indebtedness of the Company or any of its Subsidiaries, (l) the settlement, waiver or compromise of any material Legal Proceeding that was not fully reserved against on the Company Balance Sheet, and (m) the entry into any agreement or contract (whether oral or written) to do any of the foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (3com Corp), Agreement and Plan of Merger (Hewlett Packard Co)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementset forth on Schedule 5.6, since December 31November 30, 2009 2006 (the Company and "Acquiror Balance Sheet Date"), Acquiror has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred (ia) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that or would have reasonably be expected to result in, a Company Material Adverse EffectEffect on Acquiror; (b) any acquisition, sale or transfer of any material asset of Acquiror other than in the ordinary course of business and consistent with past practice; (vc) any change in accounting methods, principles methods or practices (including any change in depreciation or amortization policies or rates) by the Company materially affecting Acquiror or any revaluation by Acquiror of any of its assets; (d) any declaration, liabilities setting aside, or businesses, except insofar as may have been required by payment of a change in GAAP dividend or (vi) except other distribution with respect to depreciation and amortization the shares of the assets Acquiror or any direct or indirect redemption, purchase or other acquisition by Acquiror of the Company or any of its Subsidiariesshares of capital stock; (e) any Material Contract entered into by Acquiror, other than in the ordinary course of business and as provided to Acquiror, or any material amendment or termination of, or default under, any material Tax election Material Contract (as defined in Section 5.14) to which Acquiror is a party or by which it is bound; (f) any amendment or change to the Certificate of Incorporation or Bylaws of Acquiror; (g) any increase in such electionor modification of the compensation or benefits payable or to become payable by Acquiror to any of its directors, executive officers, or, other than in the ordinary course of business, employees; or (h) any change negotiation or agreement by Acquiror to do any of the things described in material method the preceding clauses (a) through (g) (other than negotiations with Acquiror and its representatives regarding the transactions contemplated by this Agreement). At the Effective Time, there will be no accrued but unpaid dividends on shares of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityAcquiror's capital stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Convio, Inc.), Agreement and Plan of Merger (Convio, Inc.)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 3.7, since December 31the Balance Sheet Date, 2009 the business of the Company and its Subsidiaries have has been conducted their respective businesses only in the ordinary course consistent with past practice, Ordinary Course of Business and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been any event, occurrence, change, development, condition or state of circumstances which has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in Schedule 3.7, since the Balance Sheet Date, there has not occurred: (i) any damage, destruction or loss, whether or not adequately covered by insurance, involving any Asset in excess of $50,000; (ii) any adoption or modification of any Benefit Plan made to, for or with any employees of the Company; (iii) any change in compensation payable (including, without limitation, commission, bonus or other direct or other remuneration) or to become payable by the Company to its employees, directors, officers or agents or change in benefits under any Benefit Plan, in each case other than changes made in the Ordinary Course of Business; (iv) any sale or other disposition of any Assets of the Company, other than sales or dispositions made in the Ordinary Course of Business; (v) any creation or other incurrence of a Lien of any kind upon any Assets of the Company except Permitted Liens; (vi) any change in the method of allocation of expenses, liabilities or income between the Company and any other subsidiaries, divisions or business units of the Company or the Parent or any other change in the method of accounting or accounting practices of the Company; (vii) any amendment, termination, waiver, cancellation or release of any rights or claims of material value, including rights or claims under any Material Contract, or any waiver or release of any right or claim relating to the Company's business against any affiliate (as defined in Rule 405 under the Securities Act, "affiliate") of any of the Parent or the Company; (viii) any discharge or payment of any material obligation or liability of the Company other than in the Ordinary Course of Business; (ix) any incurrence of Indebtedness by the Company; (x) any capital expenditures or commitments by the Company for any addition to property, plant or equipment exceeding $20,000 individually or $100,000 in the aggregate; (xi) any material cancellation or waiver of any debts to or any claims of the Company except in the Ordinary Course of Business; (xii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company Stock, or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or any other securities of the Company, or other payments to any of the Company's stockholders in their capacity as such; (xiii) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination recapitalization or reclassification of any the capital stock of the Company Company; (xiv) (A) any employment agreement with or for the benefit of any of its Subsidiaries the Company's directors, officers, employees or agents; (B) any issuance or the authorization payment of any issuance pension, retirement allowance or other employee benefit not required to be paid by any existing Benefit Plan; or (C) any commitment made by the Company to any of the Company's directors, officers, employees or agents with respect to any additional pension, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation, group insurance, severance pay, retirement or other Benefit Plan; (xv) any amendment or termination (other than by completion thereof) of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, Material Contract; (ivxvi) any damagechange or modification in any material respect to the Company's credit, destruction collection or loss to any asset payment policies, procedures or practices, including acceleration of the Company collections or any of its Subsidiaries, receivables (whether or not covered by insurancepast due), that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles acceleration of payment of payables or practices by the Company materially affecting its assets, other liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.failure to
Appears in 2 contracts
Samples: Asset Purchase Agreement (Transtechnology Corp), Asset Purchase Agreement (Transdigm Holding Co)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement or as set forth on Section 3.8 of the Seller Disclosure Letter, since March 31, 2018 to the date of this Agreement, since December 31, 2009 (a) the Company and its Subsidiaries have Business has been conducted their respective businesses only in all material respects in the ordinary course and consistent with past practicepractice and (b) no “Event of Default” under the Debt Facilities has occurred and is continuing, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 (c) there has not been (i) any declarationevent, setting aside development or payment state of any dividend or other distribution (whether in cash, stock or property) with respect circumstances which would require the consent of Purchaser pursuant to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereonSection 5.2(a)(ii), (iii), (vi), (vii) (but replacing $250,000 in Section 5.2(a)(vii), with $1,000,000), (viii) (but replacing $100,000 in Section 5.2(a)(viii), with $1,000,000 and $1,000,000 in Section 5.2(a)(viii), with $10,000,000), (ix), (x), (xv) or (xvi) were it to be taken between the date hereof and the Closing Date. No Litigation. Except as set forth on Section 3.9 of the Seller Disclosure Letter, (a) there is, and since June 30, 2015 there has been, no Action or Order outstanding, pending or, to the Knowledge of Seller, threatened in writing against any splitof Seller, combination any Selling Subsidiary or reclassification any Transferred Subsidiary relating to the Purchased Assets or the Assumed Liabilities or the Business or the Business Employees or against the Miraclon Entities or the Transferred Subsidiaries by or before any Governmental Authority or arbitrator and (b) there is, and since June 30, 2015 there has been, no material Action, outstanding, or to the Knowledge of Seller, threatened in writing against Seller, any Selling Subsidiary or any Transferred Subsidiary, in each case, relating to the Purchased Assets or the Assumed Liabilities or the Business or the Business Employees or against the Miraclon Entities or the Transferred Subsidiaries. None of Seller, any Selling Subsidiary or any Transferred Subsidiary is subject to any Order of any capital stock Governmental Authority relating to the Business or by which any of the Company or any Purchased Assets is bound. To the Knowledge of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect ofSeller, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss no Business Employee is subject to any asset of Order that prohibits such Business Employee from engaging in or continuing any conduct, activity or practice relating to the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityBusiness.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Eastman Kodak Co)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 4.8, since December 31the date of the Latest Balance Sheet, 2009 the business of the Company and its Subsidiaries have has been conducted their respective businesses only in the ordinary course of business consistent in all material respects with past practice and there has not been: (i) any event, occurrence or development which, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect on the Company; (ii) any incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money (other than interest accrued under the terms of the Bank Credit Facility) or any obligation to pay the deferred purchase price of property of a type that should be reflected as indebtedness on a balance sheet in accordance with GAAP (other than trade payables incurred in the ordinary course of business consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), ; (iii) any split, combination or reclassification making of any loan, advance or capital stock of the Company contribution to or investment in 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, Person; (iv) any damage, destruction destruction, loss or loss to any asset of the Company or any of its Subsidiaries, casualty (whether or not covered by insurance) affecting the business, that would properties or assets of the Company which, individually or in the aggregate, has had or could reasonably be expected to have a Company Material Adverse Effect, Effect on the Company; (v) any material change in the method of accounting methodsor accounting practice by the Company, principles except for any such change required by reason of a concurrent change in GAAP; (vi) any transaction or practices commitment made, or any contract or agreement entered into, by the Company materially affecting its assets, liabilities that is material to the business or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization operations of the assets Company (including the acquisition or disposition of assets) or any relinquishment by the Company of any material contract or other right, in either case, other than transactions and commitments in the ordinary course of business consistent in all material respects with past practices and those contemplated by this Agreement; (vii) any material increase in compensation payable or benefits to directors, executive officers or key employees of the Company or any grant of its Subsidiariesany severance, termination or retention payment to any material Tax election director, officer or change in such electionkey employee of the Company; (viii) any labor dispute, any change in material method of accounting for Tax purposes other than routine grievances, or any settlement lock out, strikes, slowdowns, work stoppages or compromise threats thereof by or with respect to any employees of the Company; (ix) any material income Tax liabilitycapital expenditure, or commitment for capital expenditure, for additions or improvements to property, plant and equipment in excess of $200,000, that was not part of the Company's capital budget included in Schedule 4.8 hereto (other than as required to effect a cure as permitted under paragraph (c) of the definition of the term "Material Adverse Effect"); or (x) any commitment or agreement to do any of the foregoing.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Atlas America Inc), Securities Purchase Agreement (Resource America Inc)
Absence of Certain Changes. Except From December 31, 2011 through the date of this Agreement, (a) except for liabilities incurred in connection with the execution, delivery and performance of this Agreement and except as expressly permitted or contemplated by this Agreementthe discussions, since December 31negotiations and transactions related thereto, 2009 the business of the Company and its Subsidiaries have has been carried on and conducted their respective businesses only in all material respects in the ordinary course consistent with past practiceof business, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 (b) there has not been any (i) any declaration, setting aside for payment or payment of any dividend or other distribution (whether in cash, respect of any shares of the Company’s capital stock or propertyother equity or voting interests (other than regular quarterly cash distributions of $0.04 per Company Share), (ii) redemption, purchase or other acquisition of the Company’s outstanding shares of capital stock or other equity or voting interests (other than (x) pursuant to the Company Plans or the Share Units or (y) in connection with the satisfaction of Tax withholding obligations with respect to Share Units) or (iii) split, combination, subdivision or reclassification of any shares of the Company’s capital stock of or other equity or voting interests, (c) there has not been any change in any material respect in the Company Company’s or any of its Subsidiaries, other than any declaration setting aside ’ financial accounting or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting actuarial methods, principles or practices by the Company materially affecting its assets, liabilities or businessespractices, except insofar as may have been required (1) by a change in GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, (2) by Applicable SAP or (vi3) except with respect by applicable Law, including Regulation S-X under the Securities Act, (d) there has not been any effect, change, event or occurrence that, individually or in the aggregate, has had or would reasonably be expected to depreciation have a Material Adverse Effect and amortization of the assets of (e) neither the Company or nor any of its SubsidiariesSubsidiaries has taken any action or failed to take any action that would have resulted in a breach of Sections 5.01(a)(vi) or 5.01(a)(xii) had the restrictions thereunder been in effect since December 31, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability2011.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Validus Holdings LTD), Agreement and Plan of Merger (Flagstone Reinsurance Holdings, S.A.)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreement, since December Since May 31, 2009 2005 (the Company and its Subsidiaries have conducted their respective businesses only in “Parent Balance Sheet Date”) through the ordinary course consistent with past practiceEffective Time, and the Company there has not suffered occurred: (i) any change, event or condition (whether or not covered by insurance or similar indemnification agreement) that has resulted in, or would reasonably be expected to result in, a Company Parent Material Adverse Effect, and since December 31(ii) any acquisition, 2009 there has not been sale or transfer of any material asset of Parent or any of its subsidiaries, (iiii) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Parent or any revaluation by Parent of any of its or any of its subsidiaries’ assets, (iv) any declaration, setting aside aside, or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to any capital stock the shares of the Company Parent, or any of its Subsidiariesdirect or indirect redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption purchase or other acquisition by the Company or Parent of any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices material contract entered into by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company Parent or any of its Subsidiariessubsidiaries, or any material amendment or (except by way of lapse of the term thereof) termination of, or default under, any material Tax election contract to which Parent or any of its subsidiaries is a party or by which it is bound, (vi) any action to amend or change the Certificate of Incorporation or Bylaws or equivalent organizational documents of Parent, Merger Sub 1 or Merger Sub 2, (vii) any material increase in such electionthe compensation or benefits payable or to become payable by Parent to any of its directors or employees, other than in the ordinary course of business or increases associated with merit or annual pay increases or promotions in the ordinary course of business, (viii) any change in material method transaction with any affiliate of accounting for Tax purposes Parent which is not a Subsidiary of Parent, or (ix) any negotiation or agreement by Parent or any settlement or compromise of its subsidiaries to do any material income Tax liabilityof the things described in the preceding clauses (i) through (viii) (other than negotiations with Company and its representatives regarding the transactions contemplated by this Agreement and the agreements disclosed herein).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Centra Software Inc), Agreement and Plan of Reorganization (Saba Software Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 3.8 of the Disclosure Schedule, since December 31January 1, 2009 2013, the Company and its Subsidiaries Seller has conducted the Business in the usual ordinary course, and, without limiting the generality of the foregoing, since such date, there has not been: (a) any change or condition of any character in the Assets including, without limitation, the financial condition, results of operations or prospects of the Business which, individually or in the aggregate, had or could reasonably be expected to have conducted their respective businesses only a material adverse effect on the revenues, financial condition, results of operations, properties, assets or prospects of the Seller (a "Material Adverse Effect"); (b) any capital expenditure or commitment thereof in excess of $25,000 individually or $50,000 in the aggregate, or the making or any loans or advances; (c) any sale, lease, license, Encumbrance or other transfer or disposition of any assets or properties of the Seller, except in the ordinary course consistent with past practice, and of the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been Business; (id) any declaration, setting aside forgiveness or payment cancellation of any dividend debts or other distribution claims; (whether in cash, stock e) any entry into or property) with respect commitment to enter into any material contract by the Seller or any change or amendment to any capital stock material contract, or any entry into any or commitment to enter into any contract with an affiliate of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, Seller; (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (ivf) any damage, destruction or loss to any asset of the Company properties or any of its Subsidiariesassets owned, leased or used by the Seller, whether or not covered by insurance, that would have a Company Material Adverse Effect, which adversely affected the operations of the Business; (vg) any change by the Seller in its financial or tax accounting principles or methods, principles or practices any failure to maintain the books, accounts and records of the Seller in the usual, regular and ordinary manner on a basis consistent with prior practice and in accordance with GAAP; (h) any acquisition (by merger, consolidation or acquisition of stock or assets) by the Company materially affecting its assets, liabilities Seller of any business entity or businesses, except insofar as may have been required by a division or significant assets thereof; (i) any change made or authorized in GAAP the Seller's certificate of incorporation or by-laws; or (vij) except any failure by the Seller to use its customary best efforts to preserve the Seller's goodwill with respect suppliers, customers and others with which it has business relationships and to depreciation maintain its business, employees, licenses and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityoperations consistent with past practices.
Appears in 2 contracts
Samples: Asset Purchase Agreement (SpendSmart Payments Co), Asset Purchase Agreement (SpendSmart Payments Co)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except as expressly permitted or contemplated by this Agreementthe Company SEC Reports, since December 31September 30, 2009 1994 the Company and its Subsidiaries have conducted their respective businesses only in, have not engaged in any transaction other than according to, the ordinary course consistent with past practiceand usual course, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (ia) any Material Adverse Effect; (b) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any the capital stock of the Company or any of its Subsidiaries, other than ; (c) any declaration setting aside or payment from a wholly owned Subsidiary of change by the Company in accounting principles, practices or methods; (d) any labor dispute or difficulty which is reasonably likely to result in any Material Adverse Effect, and to the Company's knowledge no such dispute or difficulty is now threatened; (e) except as contemplated by the POL Agreement, any material asset sold, disposed of (iiexcept inventory sold in the ordinary course of business) mortgaged, pledged or subjected to any purchaselien, redemption charge or other acquisition encumbrance; (f) except as set forth on Schedule 3.8(f), any increase in the compensation payable or which could become payable by the Company or any of its Subsidiaries to their directors, officers, employees, distributors, dealers or sales representatives; (g) any amendment of any employee benefit plan; (h) any issuance, transfer, sale or pledge by the Company or its Subsidiaries of any shares of capital stock or any other securities or of any commitments, options, rights or privileges under which the Company or its Subsidiaries is or may become obligated to issue any shares of stock or other securities; (i) any indebtedness incurred by the Company or its Subsidiaries, except such as may have been incurred in the ordinary course of business and consistent with past practice; (j) any loan made or agreed to be made by the Company or its Subsidiaries, nor has the Company or its Subsidiaries become liable or agreed to become liable as a guarantor with respect to any loan; (k) any waiver by the Company or its Subsidiaries of any right or rights of material value or any payment, direct or indirect, of any material debt, liability or other obligation; or (l) except as set forth on Schedule 3.8(l), any change in or amendment to the articles of incorporation or bylaws (or similar charter documents) of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Baxter International Inc), Agreement and Plan of Merger (Psicor Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementWith respect to the First Closing, since December 31, 2009 the date of the most recent financial statements of the Company and its Subsidiaries have conducted their respective businesses only included in the ordinary course consistent Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2021, filed with past practicethe Commission on August 6, 2021, and with respect to the Second Closing, since the date of the most recent financial statements of the Company has not suffered a Company Material Adverse Effectincluded in the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K, and since December 31as applicable, 2009 for the quarter or year, as applicable, immediately preceding the Second Tranche Exercise Notice: (i) there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether change in cash, stock or property) with respect to any the capital stock (other than the issuance of shares of Common Stock or Class B common stock upon exercise of stock options and warrants or the settlement of restricted stock units described as outstanding in, and the grant of options and awards under existing equity incentive plans described in, the Company SEC Filings, the short-term debt or long-term debt of the Company or any of its Subsidiariessubsidiaries, other than or any declaration setting dividend or distribution of any kind declared, set aside for payment, paid or payment from made by the Company on any class of capital stock, or any material adverse change, or any development involving a wholly owned Subsidiary prospective material adverse change, in or affecting the business, properties, management, financial position, stockholders’ equity or results of operations of the Company to the Company, and its Subsidiaries taken as a whole; (ii) any purchase, redemption or other acquisition by neither the Company or nor any of its Subsidiaries subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of any shares of capital stock or any other securities of business) that is material to the Company and its Subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its Subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its Subsidiaries or any optionstaken as a whole and that is either from fire, warrantsexplosion, calls or rights to acquire such shares flood or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiariescalamity, whether or not covered by insurance, that would have a Company Material Adverse Effector from any labor disturbance or dispute or any action, (v) order or decree of any change court or arbitrator or governmental or regulatory authority, except in accounting methods, principles or practices by each case as otherwise disclosed in the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitySEC Filings.
Appears in 2 contracts
Samples: Securities Purchase Agreement (SK Ecoplant Co., Ltd.), Securities Purchase Agreement (Bloom Energy Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement Since December 31, 1997 and except as expressly permitted or contemplated by this Agreementset forth in the Company SEC Reports and Section 4.18 of the Company Disclosure Schedule, since December 31, 2009 the Company and its Subsidiaries subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been been: (ia) any event, occurrence or development of a state of circumstances or facts which has had or is reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on the Company; (b) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock shares of the Company Common Stock, or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchaserepurchase, redemption or other acquisition by the Company or -19- 24 any of its Subsidiaries subsidiaries of any amount of outstanding shares of capital stock or any other securities of, or other ownership interests in, the Company or any of its subsidiaries; (c) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities subsidiaries; (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiid) any splitincurrence, combination assumption or reclassification of any capital stock of guarantee by the Company or any of its Subsidiaries subsidiaries of any indebtedness from any third party for borrowed money other than guarantees by the Company for the benefit of any of its subsidiaries and other than in the ordinary course of business and in amounts and on terms consistent with past practices; (e) any creation or assumption by the Company or any issuance or the authorization of its subsidiaries of any issuance Lien on any material asset other than in the ordinary course of business consistent with past practices; (f) any making of any loan, advance or capital contribution to or investment in any person other securities than loans, advances or capital contributions to or investments in respect of, wholly-owned subsidiaries or to employees of the Company made in lieu the ordinary course of or in substitution for shares of their respective capital stock, business consistent with past practices; (ivg) any damage, destruction or other casualty loss to any asset of the Company or any of its Subsidiaries, (whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles affecting the business or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiariessubsidiaries which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on the Company; (h) 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, without limitation, the acquisition or disposition of any assets) (other than transactions and commitments contemplated by this Agreement) inconsistent with the Company's 1998 Strategic and Annual Operating Plan dated February 18, 1998 (the "1998 Plan"), which was disclosed to Parent and Purchaser prior to the date of this Agreement, or any relinquishment by the Company or any of its subsidiaries of any material Tax election contract, license or change in such election, right; (i) any change in material any method of accounting for Tax purposes or accounting principle or practice by the Company or any settlement of its subsidiaries, except for any such change required by GAAP or compromise Regulation S-X promulgated under the Exchange Act ("Regulation S-X"); or (j) any (i) grant by the Company or any of its subsidiaries of any severance or termination pay to, or entry into any employment, termination or severance arrangement with, any director, officer or employee of the Company or any subsidiaries other than any such grant or arrangement to or with any employee of any subsidiary of the Company in the ordinary course in an amount not exceeding an amount equal to the annual compensation plus expenses relating to "COBRA" and out-placement benefits of such employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its subsidiaries, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements or (iv) increase in compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its subsidiaries, other than in the ordinary course of business. SECTION 4.19. MILLENNIUM (a) The Company is in the process of conducting an inventory and assessment of all software, computers, network equipment, technical infrastructure, production equipment and other equipment and systems that are material income Tax liabilityto the operation of its business and the businesses of its subsidiaries and that rely on, utilize or perform date or time processing ("Systems"). (b) Any failure of any of the Company's Systems to be Year 2000 Complaint has not had and is not reasonably expected to have a Material Adverse Effect on the Company. (c) "Year 2000 Compliant" means a System will at all times: (i) consistently and accurately handle and process date and time information and data values before, during and after January 1, 2000, including but not limited to accepting date input, providing date output, and performing calculations on or utilizing dates or -20- 25 portions of dates; (ii) function accurately and in accordance with its specifications without interruption, abnormal endings, degradation, change in operation or other impact, or disruption of other Systems, resulting from processing date or time data with values, before, during and after January 1, 2000; (iii) respond to and process two-digit date input in a way that resolves any ambiguity as to century; and (iv) store and provide output of date information in ways that are unambiguous as to century. SECTION 4.20. FULL DISCLOSURE None of the representations or warranties of the Company contained in this Article 4 nor any of the disclosures contained in the Company Disclosure Schedule contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements contained herein or therein, in light of the circumstances under which they are to be made, not misleading, subject to such exceptions which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The documents furnished by the Company pursuant to this Agreement are in all material respects true and correct copies of such documents. SECTION 4.21. REAL PROPERTY (a) Section 4.21(a) of the Company Disclosure Schedule lists all material real property owned by the Company or any of its subsidiaries (the "Owned Real Property"). The Company has good and marketable title in fee simple to the Owned Real Property and, except as indicated in Section 4.21(a) of the Company Disclosure Schedule, the Owned Real Property and all mineral reserves located thereon are owned free and clear of any charge, claim, community property interest, equitable interest, lien, option, pledge, security interest, mortgage, lease, license, easement, right of first refusal or other encumbrance ("Liens") other than for Permitted Liens. (b) Section 4.21(b) of the Company Disclosure Schedule contains a list of all leases and subleases (the "Leases"), with respect to all material real property leased by the Company or any of its subsidiaries (the "Leased Property"). (c) The Company and its Subsidiaries have the mineral reserves disclosed in pages 1-7 of the 1997 Form 10-K. There are no material zoning or land use restrictions or covenants which would materially inhibit the surface or subsurface mining or quarrying process where such mineral reserves are located. (d) The Liens affecting the Owned Real Property or Leased Property do not and will not, with respect to each Owned Real Property or Leased Property, individually or in the aggregate, materially impair the Company's or its subsidiary's ability to use the Owned Real Property or Leased Property in the operation of the Company's or its subsidiary's business as presently conducted. To the Knowledge of the Company, the Company or its subsidiary has access to public roads, streets or the like or valid easements over private streets, roads or other private property for such ingress to and egress from the Owned Real Property and the Leased Property, except as would not materially impair the Company's or its subsidiary's ability to use any such Owned Real Property or Leased Property in the operation of the Company's or its subsidiary's business as presently conducted or for the purposes for which such Owned Real Property or Leased Property is held by the Company or its subsidiary. (e) Neither the Company nor any of its subsidiaries has received any notice of any violation of any applicable building, zoning, land use or other similar statutes, laws, ordinances, regulations, permits or other requirements in respect of the Owned Real Property and the Leased Property, and to the Knowledge of the Company, there does not exist any such violations which adversely affect the ability of the Company and its subsidiaries to use the Owned Real Property or Leased Property in the manner and scope in which it is now being used except for violations which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. Neither the Company nor any of its subsidiaries has received any notice that any, and to the Knowledge of the Company, no operations on or uses of the Owned Real Property and the Leased Property constitute non-conforming uses under any applicable building, zoning, land use or other similar statutes, laws, ordinances, regulations, permits or other requirements other than (i) non-conforming uses that are legal non- conforming uses, (ii) non-conforming uses that have been conducted with sufficient continuity so as to preserve the right to continue the existing operations and uses and any similar operations and uses for such property in the future, and (iii) non-conforming uses which, individually and in the aggregate, have not had and would not -21- 26 reasonably be expected to have, a Material Adverse Effect on the Company. Neither the Company nor any of its subsidiaries has Knowledge of or has received notice of any pending or contemplated condemnation, eminent domain or rezoning proceeding affecting the Owned Real Property or the Leased Property. (f) Neither the Company nor any of its subsidiaries has received any notice from any insurance carrier regarding defects or inadequacies in the Owned Real Property or Leased Property which, if not corrected, would result in termination of the Company's or its subsidiaries' insurance coverage or any material increase in the cost thereof, and the Company has no Knowledge of any such defects or inadequacies. (g) "Permitted Liens" means, with respect to any asset, (i) covenants, conditions, restrictions, encroachments, encumbrances, easements, rights of way, licenses, grants, building or use restrictions, exceptions, reservations, limitations or other imperfections of title (other than a Lien securing any indebtedness) with respect to such asset which, individually or in the aggregate, do not materially detract from the value of, or materially interfere with the present occupancy or use of, such asset and the continuation of the present occupancy or use of such asset or the use or occupancy for which such asset is held by a person; (ii) unfiled mechanic's, materialmen's and similar Liens with respect to amounts not yet due and payable or which are being contested in good faith through appropriate proceedings; (iii) Liens for taxes not yet delinquent or which are being contested in good faith through appropriate proceedings; and (iv) Liens securing rental payments under capital lease arrangements. SECTION 4.22. CONTRACTS Section 4.22 of the Company Disclosure Schedule sets forth a list of all material sales contracts and agreements to which the Company or any subsidiary is a party (the "Material Contracts"). All such contracts and agreements are in full force and effect and are binding on the parties thereto. No default by the Company or any of its subsidiaries has occurred thereunder, and to the Knowledge of the Company, no default by the other contracting parties has occurred thereunder, other than defaults which, individually and in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT Parent represents and warrants to the Company as follows: SECTION 5.1. ORGANIZATION AND QUALIFICATION Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power to carry on its business as it is now being conducted or currently proposed to be conducted. SECTION 5.2.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dravo Corp), Agreement and Plan of Merger (Dravo Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince the date of the Balance Sheet, since December 31, 2009 the Company and its Subsidiaries have Business has been conducted their respective businesses only in the ordinary course course, consistent with past practice. Without limiting the foregoing, and since the Company has not suffered a Company Material Adverse Effectdate of the Balance Sheet, and since December 31except as set forth in Schedule 3.6, 2009 there has not been (ia) any actual or to the best knowledge of Sellers, threatened change in the condition (financial or otherwise), properties, assets or results of operations of the Business or any Seller which, individually or in the aggregate, could have a material adverse effect, (b) any material damage, destruction or other casualty loss to, or actual or, to Sellers' knowledge, threatened forfeiture or taking of, any Assets or any property used in the Business (whether or not covered by insurance), (c) any waiver or modification by any Seller of any right or rights of substantial value, or any payment (direct or indirect) in satisfaction of any liability, which individually or in the aggregate, could have a material adverse effect on the Business, (d) any change in the accounting principles, methods, practices or procedures followed by any Seller in connection with the Business or any change in the depreciation or amortization policies or rates theretofore adopted by any Seller in connection with the Business, (e) any sale, transfer, conveyance of any Asset, or grant to any party of any license, sublicense, franchise or option or other right of any nature to sell or distribute the Assets, other than inventory in the ordinary course of the Business, (f) any material change to any business policy of the Business, including, without limitation, advertising, marketing, pricing, purchasing, personnel, return or product acquisition policies; (g) any increase in the rate of compensation or in the benefits payable or to become payable by Balfour to any employee or officer of the Business inconsistent with their past practices or, except as set forth on Schedule 3.6(g) hereto, any institution of a bonus or incentive plan for employees for fiscal 1997 or subsequent years, (h) any declaration, setting aside or payment of any dividend dividends, or other distribution (whether distributions in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock of Balfour, (i) any strikes, work stoppages, slowdowns, lockouts, arbitrations or any grievances or other securities labor disputes pending or, to Sellers' best knowledge, threatened against or involving Balfour, (j) any unfair labor practice charges, grievances or complaints pending or, to any Seller's best knowledge, threatened by or on behalf of any employee or group of employees of the Company Business, (k) any organizing activity involving any Seller or, to any Seller's best knowledge, threatened by any labor organization or group of employees of the Business, (l) any payment or commitment to pay severance or termination pay to any of Sellers' officers, directors, employees, consultants, agents or other representatives of the Business or (m) any pending or, to any Seller's best knowledge, threatened or anticipated dispute with any customer or supplier or any of its Subsidiaries occurrence or any options, warrants, calls or rights to acquire such shares situation or other securities (other than acquisitions event which is reasonably likely to result in any material reduction in amount of Shares products purchased or sold or material change in connection terms or conditions of doing business with the surrender of Shares by holders of Options, RSUs any substantial customer or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock supplier of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityBusiness.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Commemorative Brands Inc), Asset Purchase Agreement (Town & Country Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementTo the best of PVAXX's knowledge, since December the year end period of March 31, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice2000, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been been: (i) any declarationmaterial adverse change in the financial condition, setting aside assets, liabilities (contingent or payment otherwise), income or business of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, PVAXX; (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, (whether or not covered by insurance) materially and adversely affecting the properties or business of PVAXX; (iii) any declaration or payment of any dividend or distribution in respect of the capital stock or any direct or indirect redemption, purchase or other acquisition of any of the capital stock of PVAXX; (iv) any increase in the compensation, bonus, sales commissions or fee arrangement payable or to become payable by PVAXX to any of its officers, directors, employees, consultants or agents other than raises or increases in compensation consistent with prior policy that would have a Company Material Adverse Effect, are not in excess of five percent of the individual's annual compensation or hourly rate; (v) the creation of any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization material Encumbrance on any of the assets of PVAXX, or the Company amendment, modification or extension of any existing material Encumbrance on any such asset other than any such creation, amendment, modification or extension effected (A) in the ordinary course of business, (B) as required in connection with the PVAXX Share Exchange, or (C) for current taxes or assessments which are not yet due, or being contemplated in good faith by appropriate proceedings; (vi) any sale, assignment, transfer, conveyance, lease, hypothecation, abandonment or other disposition of or agreement to sell, assign, transfer, convey, lease, hypothecate, abandon or otherwise dispose of, any of its Subsidiariesthe material assets of PVAXX, other that (A) assets sold in the ordinary course of business, or; (B) any material Tax election or change assets which are scrapped as obsolete in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityconformance with customary procedure.
Appears in 2 contracts
Samples: Plan and Agreement (Pvaxx Corp), Plan and Agreement (Pvaxx Corp)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 2.8 hereto, since December 31January 1, 2009 1997, the Company and its Subsidiaries subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practicecourse, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 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 its capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Companystock, (ii) any purchaseincurrence, redemption assumption or other acquisition guarantees 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 (indebtedness for borrowed money other than acquisitions in the ordinary course of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon)business, (iii) any making of any loan, advance or capital contributions to, or investments in, any other person, (iv) any split, combination or reclassification of any of its capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective its capital stock, (ivv) (x) any damage, destruction granting by the Company or loss any of its subsidiaries to any asset officer of the Company or any of its Subsidiariessubsidiaries of any increase in compensation, except in the ordinary course of business (including in connection with promotions) consistent with past practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the SEC Reports filed and publicly available prior to the date of this Agreement, (y) any granting by the Company or any of its subsidiaries to any such officer of any increase in severance or termination pay, except as part of a standard employment package to any person promoted or hired, or as was required under employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the SEC Reports filed or (z) except termination arrangements in the ordinary course of business consistent with past practice with employees other than any executive officer of the Company, any entry by the Company or any of its subsidiaries into any employment, severance or termination agreement with any such officer, (vi) any damage, destruction or loss, whether or not covered by insurance, that would be expected to have a Company Material Adverse Effect, (vvii) any transaction or commitment made, or any contract or agreement entered into, by the Company or any of its subsidiaries relating to any of their assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company or any of its subsidiaries or any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments in the ordinary course of business and those contemplated by this Agreement, (viii) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businessesbusiness, except insofar as may have been required by a change in GAAP generally accepted accounting principles or (viix) except with respect to depreciation and amortization of the assets of the any other change which would have a Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityMaterial Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Riviera Holdings Corp), Agreement and Plan of Merger (Paulson Allen E)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSection 3.4 of the Company Disclosure Schedule, since December 31, 2009 2002, the Company and its Subsidiaries subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practicecourse, and during such period there has not been any event, change, effect or development that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect on the Company, and the Company has and its subsidiaries are not suffered aware of any event, change, effect or development which may reasonably be expected to occur or exist that, individually or in the aggregate, would have a Company Material Adverse Effect, Effect on the Company. Except as specifically disclosed in the Company’s filings and reports (including proxy statements) under the Exchange Act filed since December 31, 2009 2002 and publicly available prior to the date of this Agreement (the “Filed Company SEC Documents”) or as set forth in Section 3.4 of the Company Disclosure Schedule, since December 31, 2002 there has not been (ia) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock of the Company; (b) any entry into any agreement, commitment or any other securities of transaction by the Company or any of its Subsidiaries subsidiaries which is material to the Company and its subsidiaries taken as a whole, except agreements, commitments or any optionstransactions in the ordinary course of business, warrants, calls or rights to acquire such shares or other securities consistent with prior practice; (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiic) any split, combination or reclassification of any the Company’s capital stock or of any other equity interests in the Company or any of its Subsidiaries Company, 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 its capital stock, stock or of any other equity interests in the Company; (ivd)(i) any damage, destruction granting by the Company or loss any of its subsidiaries to any asset officer, director or key employee of the Company or any of its Subsidiariessubsidiaries of any increase in compensation, 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, (ii) any granting by the Company or any of its subsidiaries to any such officer, director or key employee of any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents or (iii) any entry by the Company or any of its subsidiaries into any employment, severance or termination agreement with any such officer, director or key employee; (e) any damage, destruction or loss, whether or not covered by insurance, that would that, individually or in the aggregate, has had or could reasonably be expected to have a Company Material Adverse Effect, Effect on the Company; (vf) any change in accounting methods, principles or practices by the Company or any subsidiary materially affecting its the consolidated assets, liabilities liabilities, results of operations or businessesbusiness of the Company or its subsidiaries, except insofar as may have been required by a change in GAAP generally accepted accounting principles; or (vig) except with respect to depreciation and amortization any making or revocation of the assets of the Company or any of its Subsidiaries, any material Tax election or change (except in such electiona manner consistent with past practice), any change in material of a method of accounting for Tax purposes purposes, or any settlement or compromise of any material income Tax liabilityliability with any Governmental Entity or any agreement to an extension of a statute of limitations.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Euramax International PLC), Agreement and Plan of Merger (Euramax International PLC)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except its Reports filed or furnished prior to the date hereof, or as expressly permitted or contemplated by this Agreement, since December 31, 2009 the Company its Audit Date it and its Significant Subsidiaries have conducted their respective businesses only in, and have not engaged in any material transaction ("material" being construed in the context of the Party and its Subsidiaries taken as a whole) other than according to, the ordinary and usual course consistent with past practiceof such businesses, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (i) any Material Adverse Change with respect to it; (ii) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with property in respect to any of its capital stock, except for dividends or other distributions on its capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company publicly announced prior to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), date hereof and except as expressly permitted hereby; (iii) any splitsplit in its capital stock, combination combination, subdivision or reclassification of any of its capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective its capital stock, except as expressly contemplated hereby or (iv) any damagechange by it in accounting principles, destruction practices or loss methods except as required by changes in US GAAP or UK GAAP, as the case may be. Since its Audit Date, except as provided for herein or as disclosed in its Reports filed or furnished prior to the date hereof, there has not been any asset of increase in the Company compensation payable or that could become payable by it or any of its SubsidiariesSubsidiaries to officers or key employees, whether or not covered by insuranceany amendment of, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization acceleration of the assets time of the Company payment or vesting under, any of its SubsidiariesCompensation and Benefit Plans or agreements, any other than increases or amendments in the ordinary course of business consistent with past practice that are not, individually or aggregate, material Tax election ("material" being construed in the context of the Party and its Subsidiaries taken as a whole) or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilitythat are contemplated by this Agreement.
Appears in 2 contracts
Samples: Offer and Implementation Agreement (Carnival Corp), Offer and Implementation Agreement (P&o Princess Cruises PLC)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince June 30, since December 311999 (the "Company Balance Sheet Date"), 2009 the Company and has conducted its Subsidiaries have conducted their respective businesses only business in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cash, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) that has resulted in, that would have or might reasonably be expected to result in, a Company Material Adverse EffectEffect to Company; (ii) any acquisition, sale or transfer of any material asset of Company or any of its subsidiaries other than in the ordinary course of business and consistent with past practice; (viii) any change in accounting methods, principles methods or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a (including any change in GAAP depreciation or amortization policies or rates) by Company or any revaluation by Company of any of its or any of its subsidiaries' assets; (viiv) except any declaration, setting aside, or payment of a dividend or other distribution with respect to depreciation and amortization the shares of the assets Company, or any direct or indirect redemption, purchase or other acquisition by Company of the any of its shares of capital stock; (v) any material contract entered into by Company or any of its Subsidiariessubsidiaries, other than in the ordinary course of business and as provided to Parent, or any material amendment or termination of, or default under, any material Tax election contract to which Company or any of its subsidiaries is a party or by which it is bound; (vi) any amendment or change to the Certificate of Incorporation or Bylaws or, except as contemplated by Section 2.32 hereof, Rights Agreement of Company; or (vii) any increase in such electionor modification of the compensation or benefits payable, or to become payable, by Company to any change of its directors or employees, other than pursuant to scheduled annual performance reviews, provided that any resulting modifications are in material method the ordinary course of accounting for Tax purposes or business and consistent with Company's past practices. Company has not agreed since June 30, 1999 to do any settlement or compromise of the things described in the preceding clauses (i) through (vii) and is not currently involved in any material income Tax liabilitynegotiations to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Cisco Systems Inc), Agreement and Plan of Merger and Reorganization (Cisco Systems Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement Section 3.8 of the Parent Disclosure Schedule and except as expressly permitted or contemplated by this Agreement, since December 31, 2009 the Company 2000, Parent and each of its Subsidiaries subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practice, practice and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred (i) any Material Adverse Effect on Parent or any of its subsidiaries, (ii) any event that could reasonably be expected to prevent or materially delay the performance of Parent's obligations pursuant to the Transaction Agreements or the consummation of the Merger by Parent, (iii) any change by Parent or any of its subsidiaries in its accounting methods, principles or practices, (iv) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the shares of capital stock of the Company Parent or any of its Subsidiariessubsidiaries or any redemption, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption purchase or other acquisition by the Company of any of Parent's or any of its Subsidiaries subsidiaries' securities, (v) any increase in the compensation or benefits or establishment of any shares bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of capital stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan, or any other securities increase in the compensation payable or to become payable to any employees, officers, consultants or directors of the Company Parent or any of its Subsidiaries subsidiaries, (vi) other than issuances of options pursuant to the Parent Plan, any issuance, grants or sale of any stock, options, warrants, calls or rights to acquire such shares notes, bonds or other securities (other than acquisitions securities, or entering into any agreement with respect thereto of Shares in connection with the surrender Parent and any of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon)its subsidiaries, (iiivii) any split, combination amendment to the Certificate of Incorporation or reclassification Bylaws of any capital stock of the Company Parent or any of its Subsidiaries subsidiaries, (viii) other than in the ordinary course of business consistent with past practice, any (w) capital expenditures, (x) purchase, sale, assignment or transfer of any material 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 due and such other liens, encumbrances or charges which do not, individually or in the aggregate, have a Material Adverse Effect on Parent, or (z) cancellation, compromise, release or waiver of any rights of material value or any issuance material debts or the authorization claims, (ix) any incurrence of any issuance material liability (absolute or contingent), except for current liabilities and obligations incurred in the ordinary course of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stockbusiness consistent with past practice, (ivx) any incurrence of any damage, destruction or loss to any asset of the Company or any of its Subsidiariessimilar loss, whether or not covered by insurance, that would have a Company Material Adverse Effectmaterially affecting the business or properties of Parent, (vxi) any change entering into any agreement, contract, lease or license other than in accounting methodsthe ordinary course of business consistent with past practice, principles (xii) any acceleration, termination, modification or practices by the Company materially affecting its assetscancellation of any agreement, liabilities contract, lease or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect license to depreciation and amortization of the assets of the Company which Parent or any of its Subsidiariessubsidiaries is a party or by which any of them is bound, (xiii) any material Tax election entering into any loan or change in such electionother transaction with any officers, any change in material method directors or employees of accounting for Tax purposes Parent or any settlement of its subsidiaries, (xiv) any charitable or compromise other capital contribution or pledge therefore, (xv) any entering into any transaction of a material nature other than in the ordinary course of business consistent with past practice, or (xvi) any material income Tax liabilitynegotiation or agreement by the Parent or any of its subsidiaries to do any of the things described in the preceding clauses (i) through (xv).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Endorex Corp)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and Since the Balance Sheet Date, except as expressly permitted or contemplated by this AgreementAgreement or as set forth in Section 4.8 of the Disclosure Schedule, since December 31, 2009 each member of the Company and Group has conducted its Subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practicecourse, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been (ia) any declarationevent, setting aside occurrence, development, circumstance or payment of any dividend condition that would or other distribution (whether would reasonably be expected to, individually or in cashthe aggregate, stock or property) with respect to any capital stock of have a Material Adverse Effect on the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the CompanyGroup, (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (ivb) any damage, destruction or loss to any asset of the Company or any of its Subsidiariesloss, whether or not covered by insurance, that would or would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse EffectEffect on the Company Group, (vc) any change in accounting methods, principles or practices by affecting the Company materially affecting its assets, liabilities or businessesGroup, except insofar as may have been required by a change in GAAP or (vid) except with respect to depreciation any (i) adoption, entry into, termination or amendment of any Company Plan or other agreement, plan or policy involving the Company Group and amortization one or more current or former director, officer, employee or independent contractor of the assets any member of the Company Group (each, a “Participant”), (ii) increase in the compensation, bonus or fringe or other benefits of, or grant or payment of any type of its Subsidiariescompensation or benefits to, any material Tax election Participant not previously receiving or entitled to receive such type of compensation or benefits, other than, in the case of employees who are neither directors nor officers, normal increases in base cash compensation in the ordinary course of business consistent with past practice, (iii) payment of any benefit or amount not required under any Company Plan as in effect on the date of this Agreement, other than wages and salaries in the ordinary course of business consistent with past practice, (iv) grant or payment to any Participant of, or grant to any Participant of any right to receive, any severance, termination, change in control, retention or similar compensation or benefits or increase in any manner such electioncompensation or benefits, (v) payment of any benefits, or grant of any awards, under or entry into, amendment or termination of, any change in material method of accounting for Tax purposes bonus, incentive, performance or any settlement other compensation plan or compromise arrangement, Company Plan (including the grant of any material income Tax liabilityequity, equity-based or equity-related awards or rights or “phantom” units or the removal of existing restrictions in any Company Plan or agreements or awards made thereunder), (vi) amendment or modification of any Restricted Common Units, Common Phantom Units, Preferred Phantom Units or Assigned Hurdle Units, (vii) action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Company Plan, (viii) action to accelerate the vesting or payment of any compensation or benefit under any Company Plan or (ix) change the manner in which contributions to any Company Plan are made or the basis on which such contributions are determined.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Noven Pharmaceuticals Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this Agreementset forth on Schedule IV.6, since December 31, 2009 the Company date of RHME's Annual Report on Form 10K (the "10-K") as filed with the Securities and its Subsidiaries have conducted their respective businesses only Exchange Commission and delivered to the Transferor,(a) RHME has not entered into any material transaction; (b) there has been no change in the ordinary course consistent with past practicecondition (financial or otherwise), and the Company has not suffered a Company Material Adverse Effectbusiness, and since December 31property, 2009 there has not been (i) any declarationprospects, setting aside assets or payment liabilities of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company or any of its SubsidiariesRHME as shown, other than changes that both individually and in the aggregate do not have a consequence that is materially adverse to such condition, business, property, prospects, assets or liabilities; (c) there has been no damage to, destruction of or loss of any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, properties or assets of RHME (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) materially and adversely affecting the condition (financial or otherwise), that would have a Company Material Adverse Effectbusiness, property, prospects, assets or liabilities of RHME; (vd) RHME has not declared, or paid any change in accounting methodsdividend or made any distribution on its capital stock, principles redeemed, purchased or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or otherwise acquired any of its Subsidiariescapital stock, granted any options to purchase shares of its stock, or issued any shares of its capital stock; (e) there has been no material Tax election change, except in the ordinary course of business, in the contingent obligations of RHME by way of guaranty, endorsement, indemnity, warranty or otherwise; (f) there have been no loans made by RHME to its employees, officers or directors; (g) there has been no waiver or compromise by RHME of a valuable right or of a material debt owed to it; (h) there has been no compensation paid to of any of RHME's employees, officers or directors and there has been paid or accrued compensation of any such employee, officer or director; (i) there has been no agreement or commitment by RHME to do or perform any of the acts described in this Section IV.7; and (j) there has been no other event or condition of any character which might reasonably be expected either to result in a material and adverse change in such electionthe condition (financial or otherwise), any change in material method business, property, prospects, assets or liabilities of accounting for Tax purposes RHME or any settlement or compromise to impair materially the ability of any material income Tax liability.RHME to conduct the business now being conducted by it. (No Schedule Required)
Appears in 1 contract
Samples: Stock Transfer and Exchange Agreement (Royal Holiday Mobile Estates)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted SCHEDULE 4.1(h), or contemplated by this Agreementotherwise disclosed in writing to MRM, since December 31September 30, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been 1997: (i) TOMEC has not entered into any declarationmaterial transaction; (ii) there has been no change in the condition (financial or otherwise), setting aside business, property, prospects, assets or payment liabilities of any dividend or other distribution (whether TOMEC as shown in cash, stock or property) with respect to any capital stock of the Company or any of its SubsidiariesTOMEC Financial Statements, other than any declaration setting aside changes that both individually and in the aggregate do not have a consequence that is materially adverse to such condition, business, property, prospects, assets or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), liabilities; (iii) any splitthere has been no damage to, combination destruction of or reclassification loss of any capital stock of the Company properties or any assets 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, TOMEC (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance) materially and adversely affecting the condition (financial or otherwise), that would have a Company Material Adverse Effectbusiness, property, prospects, assets or liabilities of TOMEC; (iv) TOMEC has not declared or paid any dividend, made any distribution on its capital stock, redeemed, purchased or otherwise acquired any of its capital stock, granted any options to purchase shares of its stock, or issued any shares of its capital stock; (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businessesthere has been no material adverse change, except insofar as may have been required in the ordinary course of business, in the contingent obligations of TOMEC by a change in GAAP way of guaranty, endorsement, indemnity, warranty or otherwise; (vi) except with respect there have been no loans made by TOMEC to depreciation and amortization its employees, officers or directors; (vii) there has been no waiver or compromise by TOMEC of a valuable right or of a material debt owed to it; (viii) there has been no extraordinary increase in the compensation of any of TOMEC's employees; (ix) there has been no agreement of commitment by TOMEC to do or perform any of the assets acts described in this Section 4.1(h); and (x) there has been no other event or conditions of the Company or any of its Subsidiaries, any character which might reasonably be expected either to result in a material Tax election or and adverse change in such electionthe condition (financial or otherwise), any change in material method business, property, prospects, assets or liabilities of accounting for Tax purposes TOMEC, or any settlement or compromise to materially impair the ability of any material income Tax liabilityTOMEC to conduct the business now being conducted.
Appears in 1 contract
Samples: Plan and Agreement (Medical Resources Management Inc)
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 5.13.2 attached hereto, since December 31, 2009 the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice2000, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been been: (i) any declaration, setting aside declaration or payment of dividends or any dividend distribution of assets of any kind whatsoever to Seller’s or other distribution (Brigantine’s shareholders in redemption of, or as the purchase price for, any of Seller’s or Brigantine’s common stock, or in discharge or cancellation, whether in cashwhole or in part, stock of any indebtedness, whether in payment of principal, interest or property) with respect otherwise, owing to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Companysuch shareholders, (ii) any purchase, redemption or other acquisition by material transaction not in the Company or any ordinary course of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), business; (iii) any splitmaterial adverse change other than as a result of general economic or industry conditions in the financial condition, combination assets, liabilities or reclassification business of Seller or Brigantine, including, but not limited to, any material deterioration in relationships with customers, vendors, sales representatives or employees; (iv) any change in Seller’s or Brigantine’s accounting methods or practices (including, without limiting the generality of the foregoing, any change in depreciation or amortization policies or rates); (v) any revaluation by Seller of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, Assets; (ivvi) any damage, destruction or loss to any asset of the Company or any of its Subsidiariesloss, whether or not covered by insurance, that would have a Company Material Adverse Effectmaterially and adversely affecting the Business, the Assets or the Brigantine Business; (vvii) any change in accounting methods, principles sale or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization transfer of any of the assets of Seller or Brigantine or any cancellation of any debts, claims or contracts, except in the Company ordinary course of business; (viii) any mortgage, pledge or subjection to lien, charge or encumbrance of any kind, except liens for taxes not yet due, of any of the assets of Seller or Brigantine other than in the ordinary course of business; (ix) any amendment or termination of any material contract or agreement to which Seller or Brigantine is a party; (x) any increase in the rate of compensation payable to, or to become payable to, any officer, director, employee or agent of Seller or Brigantine or any bonus payment or similar arrangement made to or with any of such officers, directors, employees or agents; (xi) any loan or advance by Seller or Brigantine to any person or entity, or any guaranty by Seller or Brigantine of any loan or obligation of any other person or entity; (xii) any issuance or sale by Seller or Brigantine of any shares of its common stock or of any of its Subsidiaries, other securities; (xiii) any material Tax election other event or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise condition of any material income Tax liabilitycharacter which materially and adversely affects the Business, the Assets or the Brigantine Business other than as a result of general economic or industry conditions; (xiv) any purchase by Seller or Brigantine of any fixed asset in excess of $10,000 or fixed assets in the aggregate in excess of $20,000; or (xv) any agreement by Seller or Brigantine to do any of the things described in the preceding subsections (i) through (xiv).
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Advanced Technical Products Inc)
Absence of Certain Changes. Except for liabilities incurred as disclosed in connection with this Agreement and except Section 3.9 of the Disclosure Schedule or as expressly permitted or contemplated by this AgreementAgreement (including in connection with the commencement and prosecution of a Chapter 11 Case), since December 31September 30, 2009 1999, neither of the Companies nor any Company and Subsidiary has (a) experienced any change, event or condition which, individually or in the aggregate, has had or reasonably would be expected to have a Material Adverse Effect, (b) conducted its Subsidiaries have conducted their respective businesses only business in any material respect other than in the ordinary course, (c) incurred any indebtedness for borrowed money or issued any debt securities or assumed, guaranteed or endorsed the obligations of any other Person, (d) other than immaterial sales or dispositions of assets in the ordinary course consistent with past practice, and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been of business (i) sold, transferred or otherwise disposed of any declarationof its property or assets or (ii) mortgaged or encumbered any of its property or assets, setting (e) suffered any material casualty losses not covered by insurance, (f) repurchased any of its capital stock or any capital stock of any of its Subsidiaries, (g) declared, set aside or payment of paid any dividend or other distribution in respect of its capital stock, other than ordinary dividends and payments pursuant to certain notes permitted under applicable insurance laws, (whether in cashh) amended its Certificate or Articles of Incorporation or Bylaws (or similar organizational documents) or merged with or into or consolidated with any other Person, stock (i) split, combined or propertyreclassified its capital stock, (j) with respect issued or sold (or agreed to any capital stock of the Company issue or sell) any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock or any other equity securities of the Company or any of its Subsidiaries or any options, warrants, calls conversion or other rights to acquire purchase any such shares securities or other any securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Optionsconvertible into or exchangeable for such securities, RSUs or Warrants in order granted, or agreed to pay the exercise price thereof or the taxes thereon)grant any such rights, (iiik) any split, combination increased the rates of compensation (including bonuses) payable or reclassification of any capital stock of the Company or to become payable to any of its Subsidiaries officers, employees, agents, independent contractors or consultants other than increases made in the ordinary course of business, (l) entered into any issuance new or amended any existing employment contracts, severance agreements or consulting contracts or instituted or agreed to institute any increase in benefits or altered its employment practices or the authorization terms and conditions of any issuance of any other securities in respect ofemployment, (m) except as otherwise required by law, changed, in lieu of any material respect its underwriting, actuarial or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in Tax accounting methods, principles or practices by practices, (n) ceased its lead generation activities other than in the Company materially affecting its assetsordinary course of business, liabilities (o) terminated any material reinsurance or businessescoinsurance contract (including without limitation, except insofar any surplus relief or financial reinsurance contract), whether as may have been required by a change in GAAP reinsurer or reinsured, (p) entered into any joint ventures or partnerships of any kind, or (viq) except with respect entered into any contract or other agreements to depreciation and amortization do any of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityforegoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Penncorp Financial Group Inc /De/)
Absence of Certain Changes. Except for liabilities incurred in connection with From December 31, 2003 to the date of this Agreement and Agreement, except as expressly permitted or contemplated by this Agreementset forth on Schedule 6.21, there has been no Material Adverse Change. Since December 31, 2003, the Companies have conducted the Business in the Ordinary Course of Business. In addition to the foregoing, since December 31, 2009 2003 and except as set forth on Schedule 6.21 hereto or as otherwise permitted by this Agreement, no Company has, or with respect to matters following the Company and its Subsidiaries have conducted their respective businesses only date of this Agreement, has without Buyer's consent (or deemed consent in accordance with Section 10.3(b) of this Agreement): (a) incurred any liability or obligation material to the Companies taken as a whole, other than in the ordinary course Ordinary Course of Business, (b) made any increase in the annual rate of compensation of any officer or management employee with a base pay in excess of $100,000 per year or any bonus to such person that materially increased such person's total compensation, except for periodic increases or bonuses substantially consistent with past practiceprior practices, (c) permitted or suffered any Lien on any portion of its properties except for Permitted Exceptions, (d) sold, assigned or transferred assets except for the sale of inventory and the Company has not suffered a Company Material Adverse Effectsale or disposal of property in the Ordinary Course of Business, and since December 31(e) purchased an equity interest in, 2009 there has not been or substantially all of the assets of, any business or any corporation, partnership, association or other business organization or division thereof, (f) issued any new securities or granted any options, warrants or other securities exercisable or convertible into its securities, (g) paid any dividends or made any distributions, (h) amended its certificate of incorporation, bylaws or similar governing documents, (i) any declarationredeemed, setting aside purchased or payment of any dividend otherwise acquired, directly or other distribution (whether in cashindirectly, stock or property) with respect to any capital stock of the Company or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of its capital stock or any other securities of the Company equity interests or any of its Subsidiaries option, warrant or other right to purchase or acquire any options, warrants, calls or rights to acquire such shares or other securities equity interest; (other than acquisitions j) materially changed any accounting method used by any Company; (k) entered into any agreement which would be a Material Agreement, or amended or terminated any existing Material Agreement or received written notice, or to the knowledge of Shares in connection with the surrender of Shares by holders of OptionsSellers, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon)oral notice, (iii) any split, combination or reclassification of any capital stock such amendment or termination; (l) received notice of any adverse change in its relationship with any financial institution with which it currently does business; (m) cancelled, amended, delayed or postponed (beyond its normal practice) the payments of accounts payable and other liabilities required by GAAP to be reflected on a balance sheet, in amounts in the aggregate in excess of $25,000; (n) knowingly cancelled, knowingly compromised, knowingly waived or knowingly released any material right or material claim (or series of material rights or material claims without value); or (o) entered into any agreement to do any of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityforegoing.
Appears in 1 contract
Absence of Certain Changes. Except for liabilities incurred as set forth on Schedule -------------------------- 2.6, as disclosed in connection with the SEC Reports, or pursuant to the transactions contemplated by this Agreement and except as expressly permitted or contemplated by this Agreementthe other Transaction Documents, since December 31September 30, 2009 1999: (i) the business of the Company and the Subsidiaries taken as a whole has been conducted in the ordinary course of business consistent with past practice, (ii) the Company and its Subsidiaries have conducted their respective businesses only not (a) suffered any change, event or development or series of changes, events or developments which individually or in the ordinary course consistent with past practice, and the Company aggregate has not suffered had or could reasonably be expected to have a Company Material Adverse Effect, (b) suffered any damage, destruction or casualty loss to its physical properties (whether or not covered by insurance) which individually or in the aggregate has resulted or could reasonably be expected to result in a Material Adverse Effect or (c) been the subject of any material Litigation or threatened or commenced investigation by a Governmental Entity and since December 31, 2009 (iii) there has not been (ia) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any the capital stock of the Company or its Subsidiaries (other than wholly-owned Subsidiaries) or any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, (b) any material change in accounting principles, practices or methods, (c) any entry into or amendment of any employment agreement with, or any increase in the rate or terms (including, without limitation, any acceleration of the right to receive payment) of compensation payable or to become payable by the Company or any of its SubsidiariesSubsidiaries to, other than any declaration setting aside their respective directors, officers or payment from a wholly owned Subsidiary employees, except increases in the ordinary course of business in accordance with the Company to past practice of the Company, (iid) any purchaseincrease in the rate or terms (including, redemption without limitation, any acceleration of the right to receive payment) of any bonus, insurance, pension or other acquisition employee benefit plan or arrangement covering any such directors, officers or employees, except increases in the ordinary course of business in accordance with the past practice of the Company, or (e) any material revaluation by the Company or any of its 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities including, without limitation, write-downs of inventory or businesseswrite-offs of accounts receivable except in the ordinary course of business in accordance with the Company's past practices prior to December 31, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability1999.
Appears in 1 contract
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement Since June 30, 1999 and except as expressly permitted or contemplated by this Agreementprior to -------------------------- the Board Transition Date, since December 31, 2009 neither the Company and nor any of its Subsidiaries have conducted their respective businesses only subsidiaries has suffered any change or changes in the ordinary course consistent with past practicefinancial condition or business, and the Company results of operations or assets which has not suffered resulted or reasonably would be expected to result in a Company Material Adverse Effect. Since June 30, and since December 311999, 2009 there has not been (ia) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the shares of capital stock of the Company Company, or any of its Subsidiaries, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries subsidiaries of any shares of capital stock of the Company except for (i) the exchange by Securicor Communications Limited, a company organized under the laws of England and Wales, of 3,476,900 shares of Common Stock (prior to adjustment for the reverse stock split referenced immediately below) for 3,476,900 shares of Series A Preferred Stock of the Company on September 30, 1999; and (ii) the one-for-four reverse stock split effected on October 15, 1999; (b) (i) any increase in the compensation paid, payable or to become payable by the Company or any of its subsidiaries (including the rate and terms thereof) to its directors, officers, employees or consultants, except increases which occur in the ordinary course of business in accordance with its customary practices or (ii) any increase in the rate or terms of any bonus, insurance, pension or other securities employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees, except increases occurring in the ordinary course of business in accordance with its customary practices; (c) any entry into any agreement, commitment or transaction by the Company or any of its subsidiaries, which is material to the Company and its subsidiaries taken as a whole (except agreements, commitments or transactions in the ordinary course of business in accordance with its customary practices); (d) any material change by the Company or any of its subsidiaries in accounting methods, principles or practices except as required by generally accepted accounting principles; (e) except as contemplated by this Agreement, any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities subsidiaries; (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiif) any splitincurrence, combination assumption or reclassification of any capital stock of guarantee by the Company or any of its Subsidiaries subsidiaries of any indebtedness for borrowed money (i) exceeding $4,000,000 in the aggregate or (ii) having a term longer than one year in duration; (g) any creation or other incurrence by the Company or any issuance or the authorization of its subsidiaries of any issuance lien on any asset other than in the ordinary course of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, business consistent with past practices; (ivh) any damage, destruction or other similar casualty loss to any asset of the Company or any of its Subsidiaries, (whether or not covered by insurance, that would have a Company Material Adverse Effect, (v) any change in accounting methods, principles affecting the business or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiariessubsidiaries that has resulted, or could reasonably be expected to result, in an aggregate amount in excess of $1,000,000; (i) 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 any relinquishment by the Company or any of its subsidiaries of any contract or other right, in either case, material Tax election or change to the Company and its subsidiaries, taken as a whole, other than transactions and commitments in such the ordinary course of business consistent with past practices and those contemplated by this Agreement; (j) any tax election, any change in material method of accounting for Tax purposes other than those consistent with past practice, not required by law or any settlement or compromise of any tax liability in either case that is material income Tax liabilityto the Company and its subsidiaries; (k) any grant of any severance or termination pay to (or amendment to any existing arrangement with) any director or officer of the Company or any of its subsidiaries; (l) to the Company's knowledge, 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, which employees were not subject to a collective bargaining agreement at June 30, 1999, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees.
Appears in 1 contract
Absence of Certain Changes. Except for liabilities incurred as set forth in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSchedule 2.15, since December 31, 2009 the Company 2000, Corpus Christi Bancshares and its Subsidiaries subsidiaries have conducted their respective businesses only not (i) issued or sold any capital stock of Corpus Christi Bancshares or any of its subsidiaries, or any debt or other obligations (except deposit accounts certificates of deposit, letters of credit, cashier's checks, acknowledgments of indebtedness incident to borrowings from the Federal Reserve Bank and other documents and instruments issued in the ordinary course consistent with past practice, and of banking business of First State Bank); (ii) granted any options for the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been purchase of its capital stock; (iiii) any declaration, setting declared or set aside or payment of paid any dividend or other distribution in respect of its capital stock, or directly or indirectly, purchased, redeemed or otherwise acquired any shares of such stock; (whether iv) except as described on Schedule 2.7, incurred or assumed any obligations or liabilities (absolute or contingent), except obligations or liabilities incurred in cashthe ordinary course of business, stock or propertymortgaged, pledged or subjected to lien or encumbrances (other than statutory liens not yet delinquent) with respect to any capital stock of the Company or any of its Subsidiariesassets or properties; (v) discharged or satisfied any lien or encumbrance or paid any obligation or liability (absolute or contingent), other than any declaration setting aside current liabilities included in the Corpus Christi Bancshares Current Balance Sheet, current liabilities incurred since the date thereof in the ordinary course of business and liabilities incurred in carrying out the transactions contemplated by this Agreement; (vi) sold, exchanged or payment from a wholly owned Subsidiary otherwise disposed of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its 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 (assets other than acquisitions in the ordinary course of Shares business; (vii) forgiven or canceled any debts or claims, or waived any rights, other than charge-offs of loans made to customers of First State Bank in connection the ordinary course of business of First State Bank, none of which are material individually, and all of which taken together are not in the aggregate material, and none of which were loans made directly or indirectly to any current or former director, officer or employee of First State Bank; (viii) made any general wage or salary increase, entered into any employment contract with the surrender of Shares by holders of Optionsany officer or salaried employee or instituted any employee welfare, RSUs bonus, stock option, profit-sharing, retirement or Warrants in order to pay the exercise price thereof similar plan or the taxes thereon), arrangement; (iiiix) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) suffered any damage, destruction or loss to any asset of the Company or any of its Subsidiariesloss, whether or not covered by insurance, that would have a Company Material Adverse Effectmaterially and adversely affecting its business, property of assets or waived any rights of value which in the aggregate are material; (vx) except in the ordinary course of business, entered into or agreed to enter into any change in accounting methods, principles agreement or practices by the Company materially affecting arrangement granting any preferential rights to purchase any of its assets, liabilities properties or businessesrights or requiring the consent of any party to the transfer and assignment of any such assets, except insofar as may have been required by a properties or rights; (xi) made any material change in GAAP the conduct of its business, whether entered into or made in the ordinary course of business or otherwise; (vixii) except with respect granted to depreciation and amortization any director or officer, or any employee, any increase in compensation in any form in excess of the assets amount thereof in effect as of December 31, 2001 or any severance or termination pay, or entered into any written employment agreement, trust, fund or other arrangement for the Company benefit of any such director, officer or employee, whether or not legally binding; (xiii) suffered any loss of officers, employees, suppliers or customers that materially and adversely affects the business, operations or prospects of Corpus Christi Bancshares or any of its Subsidiariessubsidiaries; or (xiv) entered into any transaction outside the ordinary course of business except as expressly contemplated by this Agreement. Since June 30, any material Tax election or 2002, there has been no change in the financial condition or business prospects of Corpus Christi Bancshares, CCB Nevada or First State Bank which might result in any Material Adverse Effect on such election, any change in material method of accounting for Tax purposes financial condition or any settlement or compromise of any material income Tax liabilitybusiness prospects.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Texas Regional Bancshares Inc)
Absence of Certain Changes. Except for liabilities incurred in connection with this Agreement and except as expressly permitted or contemplated by this AgreementSince the date of the Balance Sheet, since December 31, 2009 the Company and has conducted its Subsidiaries have conducted their respective businesses business only in the ordinary course consistent with past practice, practices and the Company has not suffered a Company Material Adverse Effect, and since December 31, 2009 there has not been occurred: (i) any declarationchange, setting aside event or payment of any dividend or other distribution condition (whether in cashor not covered by insurance) that has resulted in, stock or property) with respect might reasonably be expected to any capital stock of the Company or any of its Subsidiariesresult in, other than any declaration setting aside or payment from a wholly owned Subsidiary of the Company Material Adverse Effect to the Company, ; (ii) any purchaseacquisition, redemption sale or transfer of any asset of the Company, other acquisition than sales of inventory in the ordinary course of business; (iii) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its Subsidiaries assets; (iv) any Material Contract (as hereinafter defined) entered into by the Company, or any termination or amendment of, any Material Contract; (v) any amendment to the Company's Certificate of Incorporation or Bylaws; (vi) any increase in or modification of the compensation or benefits payable or to become payable by the Company to any of its officers, directors or employees other than in the ordinary course of business consistent with past practices; or (vii) any issuance, sale or pledge of (A) additional shares of the Company's capital stock of any class (including the Company Shares), or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company for shares of capital stock or any other securities of the Company Company, or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iiiB) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares outstanding on the date thereof; (vii) any redemption, purchase or other acquisition of, any of the Company's outstanding securities (including the EPITAXX Shares); (viii) any declaration, set aside, or payment of any dividend or distribution (whether in cash, stock or property) on or in respect of any share of capital stock of the Company; (ix) any incurrance of any long-term debt for borrowed money or any short-term debt for borrowed money other than in the ordinary course of business consistent with past practice and not in excess of $50,000; (x) any capital expenditures or commitments thereto in excess of $100,000, individually or in the aggregate; (xi) any entering into of any new employment agreements with any officers, directors or employees; (xii) any loan or advance to any of the Company's officers, directors, consultants, agents or employees or to any member of their respective capital stock, families or any other loan or advance otherwise than in the ordinary course of business; (ivxiii) any damagecharitable contributions or any non-business expense; (xiv) mortgaging, destruction pledging or loss to any asset of the Company or encumbering any of its Subsidiaries, whether or not covered by insurance, that would have a Company Material Adverse Effect, assets; (vxv) any change commencing, settling or compromising of any litigation; (xvi) any hiring or termination of employees, other than in accounting methods, principles the ordinary course of business consistent with past practices; (xvii) any agreement in writing or practices orally to take any of the foregoing actions; or (xviii) any negotiation by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization do any of the assets of things described in the Company or any of preceding clauses (i) through (xvii) (other than negotiations with Acquiror and its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liability.representatives regarding the transactions contemplated by this Agreement). SECTION 2.11
Appears in 1 contract
Samples: Agreement and Plan of Merger (JDS Uniphase Corp /Ca/)
Absence of Certain Changes. Except for liabilities incurred as previously disclosed in connection with this Agreement and except the SEC Filings or as expressly permitted otherwise disclosed in Schedule 4.5 attached hereto or as otherwise contemplated by this Agreement, since December 31February 23, 2009 1997 and up to the Company Closing Date, (i) there has not been and will not be any Material Adverse Change, (ii) the businesses of the Corporation and each of its Subsidiaries subsidiaries have been and will be conducted their respective businesses only in the ordinary course, (iii) neither the Corporation nor any of its subsidiaries has incurred or will incur any material liabilities (direct, contingent or otherwise) or engaged in any material transaction or entered into any material agreement outside the ordinary course consistent with past practiceof business, (iv) the Corporation and its subsidiaries have not and will not increase the compensation of any officer or grant any general salary or benefits increase to their employees other than in the ordinary course of business or pursuant to collective bargaining agreements, (v) there has been no, and the Company has will not suffered a Company Material Adverse Effectbe any, and since December 31, 2009 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 the capital stock of the Company Corporation other than regular annual cash dividends by the Corporation on its capital stock in an amount not in excess of $0.80 per share per fiscal annum which have been or will be declared and paid at the same time such dividends are customarily declared and paid, (vi) there has been no, and will not be any, change by the Corporation in accounting principles, practices or methods, and (vii) neither the Corporation nor any of its Subsidiaries, other than any declaration setting aside subsidiaries has agreed or payment from a wholly owned Subsidiary of the Company to the Company, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any 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 (other than acquisitions of Shares in connection with the surrender of Shares by holders of Options, RSUs or Warrants in order to pay the exercise price thereof or the taxes thereon), (iii) any split, combination or reclassification of any capital stock of the Company or any of its Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) any damage, destruction or loss to any asset of the Company or any of its Subsidiarieswill agree, whether or not covered by insurancein writing, that would have a Company Material Adverse Effect, (v) to do any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vi) except with respect to depreciation and amortization of the assets of the Company or any of its Subsidiaries, any material Tax election or change in such election, any change in material method of accounting for Tax purposes or any settlement or compromise of any material income Tax liabilityforegoing.
Appears in 1 contract
