No Changes. Except as contemplated by this Agreement, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any: (a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices; (b) amendments or changes to the Articles of Incorporation or Bylaws of the Company; (c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate; (d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property; (e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company; (f) revaluation by the Company of any of its assets, including the Property; (g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company; (h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; (i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property; (j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project; (k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others; (l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company; (m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project; (n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company; (o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets; (p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or (q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 3 contracts
Sources: Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/)
No Changes. Except as contemplated by this Agreement, since In the date of the Interim Balance Sheet, past 30 calendar days at Centra Bella there has have not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;Bylaws
(b) capital expenditure or commitment
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;)
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock or any direct or indirect redemption, purchase or other acquisition of the Company;its capital stock
(h) material change increase in the salary or other compensation whether cash or equity-based, payable or to become payable to any of the officers, directors, employees or advisors or the declaration, payment or commitment or obligation of any kind for the payment, of a bonus or other salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(i) acquisitionincrease, saleor announcement of any increase, leasein the wages, license salaries, compensation, bonuses, incentives, pension, or other disposition of benefits payable to any of the assets of the Companyemployees, consultants, or any creation of any security interest in such assets or properties, including the Propertydirectors;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company Loans to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lk) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable ;
(l) the commencement or notice or threat or reasonable basis therefor of the Companyany lawsuit;
(m) commencement issuance or notice sale, or threat of commencement contract to issue or sell of any lawsuit or judicial or administrative proceeding against or investigation shares of the Company capital stock or its affairsany or securities exchangeable, including convertible or exercisable therefor, or any securities, warrants, options or rights to purchase any of the Projectforegoing;
(n) any event or condition of any character that has had or could be is reasonably expected likely to have a material an adverse impact on the Companyeffect upon this transaction;
(o) any agreement, contract, lease or commitment or any extension or modification transaction outside of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;business.
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreemento).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Textechnologies, Inc.), Stock Purchase Agreement (Textechnologies, Inc.)
No Changes. Except as contemplated by this Agreement(i) Since June 30, since 2000 and through the date of the Interim Balance Sheethereof, there has not been, occurred or arisen any:
(a) transaction by the Company Company, WW or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesJune 30, 2000;
(b) transfer in, sale, lease, license or allocation of any assets (including intangible assets), Liabilities or employees to the Company, WW or any Subsidiary by the Stockholder or any of its subsidiaries (other than the Company, WW and its Subsidiaries);
(c) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws or other applicable charter documents of the Company;
(c) expenditure , WW or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregateany Subsidiary;
(d) destruction of, damage to or loss use by the Business of any material assetsassets owned by or licensed to the Stockholder or any of its subsidiaries (other than the Company, business or customer of the Company (whether or not covered by insuranceWW and its Subsidiaries), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) addition to or modification of the employee benefit plans, arrangements or practices described in Section 2.20 of this Agreement (other than as described in Section 5.19 hereof);
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company, WW or any Subsidiary;
(fh) revaluation by the Company Company, WW or any Subsidiary of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , WW or any compensation arrangement Subsidiary, or agreement any split, combination or reclassification with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of respect to the assets capital stock of the Company, WW or any creation Subsidiary, or any issuance or authorization of any security interest issuance of any other securities in such assets respect of, in lieu of or propertiesin substitution for shares of capital stock of the Company, including WW or any Subsidiary or any direct or indirect redemption, purchase or other acquisition by the PropertyCompany, WW or any Subsidiary of any of its capital stock (or options, warrants or rights convertible into, exercisable or exchangeable therefor);
(j) amendment increase in the salary or termination other compensation payable or to become payable to any of its officers or directors of the Company, WW or any Subsidiary other than increases made in the ordinary course of business consistent with past practices and in no event in excess of ten percent (10%) of such officer's or director's base salary, or the declaration, payment or commitment or obligation of any material contractkind for the payment of a bonus or other additional salary or compensation to any such person, agreement, permit, approval other than bonuses or license to which the Company is a party additional salary or by which it is bound, including any purchase and sale agreements for lots compensation paid in the Projectordinary course of business consistent with past practices;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, WW or any Subsidiary in excess of $50,000 in the aggregate, including any write-off or other compromise of any account receivable of the Company, WW or any Subsidiary;
(l) except as contemplated by this Agreement, issuance, sale, or contract to issue or sell, by the Company, WW or any Subsidiary of any shares of Company Capital Stock or WW Capital Stock or shares of capital stock of any Subsidiary or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or WW Capital Stock or shares of capital stock of any Subsidiary, or any securities, warrants, options or rights to purchase any of the foregoing;
(m) commencement or written notice or or, to the Stockholder's Knowledge, threat of commencement of any lawsuit or judicial or administrative or, to the Stockholder's Knowledge, proceeding against or investigation of against the Company Company, WW or its affairs, including the Project;
(n) agreement, understanding or commitment, or any event modification to or condition amendment of any character that has such agreement, understanding or could be reasonably expected to have a material adverse impact commitment, between the Stockholder and any of its subsidiaries or affiliates on the Companyone hand, and the Company or WW, on the other hand;
(o) any agreementadoption of a plan of or resolutions providing for the liquidation, contractdissolution, lease merger, consolidation or commitment or any extension or modification other arrangement of the terms of any agreementCompany, contract, lease WW or commitment which the Subsidiaries (i) involves except for the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeestransactions contemplated hereby); or
(qp) negotiation or agreement by the Company Company, WW or any Subsidiary or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (po) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
(ii) Since September 30, 2000 and through the date hereof, there has not been, occurred or arisen any:
(a) material adverse change in the Company's or WW's condition (financial or otherwise), results of operations, assets, liabilities, working capital or reserves, except for changes contemplated hereby or set forth in the Company Financials;
(b) payment, discharge or satisfaction, in any amount in excess of $100,000 in any one case, or $250,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) of the Company, WW or any Subsidiary, other than payment, discharge or satisfaction of Liabilities in the ordinary course of business consistent with past practices;
(c) capital expenditure or commitment by or on behalf of the Company, WW or any Subsidiary or the Business, either individually or in the aggregate, exceeding $100,000, other than, in the case of the Company and the Metal Subsidiaries only, in the ordinary course of business consistent with past practices;
(d) event or condition that has had or would be reasonably expected to have a Material Adverse Effect (as defined in Section 10.2 hereof) on the Company, WW or any Subsidiary;
(e) loan by the Company, WW or any Subsidiary to any person or entity, incurring by the Company, WW of any indebtedness, guaranteeing by the Company, WW or any Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(f) cancellation of any material indebtedness owed to the Company, WW or its Subsidiaries relating to any of the Company's or WW's business activities or properties (or the business activities or properties of the Subsidiaries), whether or not in the ordinary course of business;
(g) making or changing in any election in respect of Taxes (as defined in Section 2.8 hereof) of the Company, WW or any Subsidiary, adoption or change in any accounting method in respect of Taxes of the Company, WW or any Subsidiary, agreement or settlement of any claim or assessment in respect of Taxes of the Company, WW or any Subsidiary, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Company, WW or any Subsidiary; or
(h) negotiation or agreement by the Company, WW or any Subsidiary or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (g) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
(iii) Since March 31, 2000 and through the date hereof, there has not been, occurred or arisen any transfer out, sale, lease or license of any assets (including intangible assets and URLs), Liabilities or employees of the Company, WW or any Subsidiary to (with respect to material assets only) a third party or to (with respect to all assets) the Stockholder or any of its subsidiaries (other than the Company, WW and the Subsidiaries).
Appears in 2 contracts
Sources: Merger Agreement (Cendant Corp), Agreement and Plan of Reorganization (Cendant Corp)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetJuly 31, 1997, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company Agreement --------- which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetYear-End Financials, there has not been, occurred or arisen any:
(a) transaction by the Company or its Subsidiaries except in the ordinary course Ordinary Course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(b) modifications, amendments or changes to the Articles of Incorporation Association or Bylaws the charter of the Companyany of its Subsidiaries;
(c) expenditure expenditure, transaction or commitment by the Company in excess of exceeding $10,000 individually or $50,000 in the aggregate100,000 individually;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $100,000 in any one case of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaries), other than payments, discharges or satisfactions in the Ordinary Course of Business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or its Subsidiaries (whether or not covered by insurance), including the Property;
(ef) employment dispute, including (i) any claims made by Employees which individually or in the aggregate are reasonably expected to be material to the Company or any of its Subsidiaries; (ii) claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge, unfair or wrongful dismissal, unlawful discrimination, breach of contract or any other unlawful employment or labor practice or action with respect to the Company or its Subsidiaries (whether or not such allegedly unlawful practice or action is actually unlawful under the laws of Sweden or any other jurisdiction); or (iii) any facts or matters, to the Knowledge of the Sellers, likely to give rise to a claim within the meaning of this Section 3.9(f);
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or its Subsidiaries other than as required by GAAP or applicable law;
(fh) adoption of or change in any election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) through the date of this Agreement, revaluation by the Company or its Subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property, and whether openly or concealed) in respect to of any Company Capital Stock or capital stock of any of the Company’s Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or capital stock of the Company’s Subsidiaries, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or shares of the Company’s Subsidiaries, or any direct or indirect repurchase, redemption, or other acquisition by the Company or any of the Company’s Subsidiaries of any shares of Company Capital Stock or capital stock of the Company’s Subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) material except as required by Contracts in effect as of the date hereof that have been disclosed to Purchaser, (i) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiaries to any of its respective Senior Managers, directors, employees or consultants, or (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiaries of a severance payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any compensation arrangement of its respective Senior Managers, directors, Employees or agreement consultants; provided in all cases that the actions contemplated by clauses (i) and (ii) are consistent with any employee, officer, director or stockholderthe terms required by such Contracts;
(il) acquisition, termination of any Contract that would have been a Material Contract if such Contract had been in effect as of the date of this Agreement;
(m) sale, lease, license lease or other disposition of any of the material assets (whether tangible or intangible) or properties of the CompanyCompany or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company or any of its Subsidiaries to any PersonPerson (except for advances to employees for travel and business expenses in the Ordinary Course of Business), or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or any of its Subsidiaries of any indebtednessindebtedness (including Company Indebtedness), amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for obligations to reimburse employees for travel and business expenses and trade payables incurred in the Ordinary Course of Business;
(lp) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or or, to the Knowledge of the Sellers, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries or relating to any of their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written or (to the Knowledge of the Sellers) oral notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its affairs, including Subsidiaries or of infringement by the ProjectCompany or any of its Subsidiaries of any other Person’s Intellectual Property;
(ns) issuance, grant, delivery, sale or purchase of, or proposal, Contract or agreement to issue, grant, deliver, sell or purchase, by the Company, of (i) any event shares of Company Capital Stock or condition capital stock of any character of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or capital stock of any of its Subsidiaries, or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Stock or shares of capital stock of any of its Subsidiaries upon the exercise of Company Warrants or any of the foregoing that has or could be reasonably expected to have a material adverse impact on is described in Section 3.2 of the CompanySellers’ Disclosure Schedule;
(ot) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves sale, lease, license (other than licenses to customers in the payment Ordinary Course of greater than $25,000 per annumBusiness and as otherwise permitted under this Agreement) or transfer of any Company Intellectual Property or execution, or, in any material respect, any modification or amendment, of any agreement with any Person with respect to Company Intellectual Property, or (ii) extends for more purchase or license of any material Intellectual Property of a third party other than one (1) yearShrink-Wrap Code or execution, or, in any material respect, any modification or amendment, of any agreement with respect to the material Intellectual Property of a third party other than Shrink-Wrap Code, (iii) involves agreement or modification or amendment of an existing agreement with respect to the development of any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent Intellectual Property with past practicesa third party, or (iv) involves material change outside the Ordinary Course of Business in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries;
(u) entering into any material agreement or modification to any Contract pursuant to which any other party thereto is or was granted marketing, distribution, development, delivery, manufacturing or similar rights with respect to any Company Products or Company Intellectual Property;
(v) Company Material Adverse Effect;
(w) purchase or sale of, lease of or transfer of any interest in real property, granting of any material assetssecurity interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Properties or other real property by the Company or any of its Subsidiaries;
(px) hiring acquisition by the Company or any of its Subsidiaries of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer of its Subsidiaries to acquire by merging or employees thereof consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or any of its Subsidiaries;
(y) grant by the Company or any of its Subsidiaries of any severance or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Sellers’ Disclosure Schedule;
(z) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement with Senior Managers or in excess of $100,000 per annum in salary, excluding annual salary increases in the Ordinary Course of Business in the case of non-Senior Managers;
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(bb) any action to accelerate the vesting schedule of any Company Options;
(cc) hiring, promotion, demotion or termination or other change to the employment status or title of any Senior Managers, except as may be permitted under this Agreement; (dd) alteration of any interest of the Company in any of its Subsidiaries or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(ee) cancellation, amendment or renewal of any insurance policy of the Company or any of its Subsidiaries, except in the Ordinary Course of Business;
(ff) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries in excess of $25,000 individually or $100,000 in the aggregate; or
(gg) agreement by the Company, any of its Subsidiaries, or any Senior Manager, consultant, or employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pff) of this Section 3.9 (other than negotiations with Monaco or Buyer Purchaser and their its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 2 contracts
Sources: Share Transfer Agreement, Share Transfer Agreement (Dolby Laboratories, Inc.)
No Changes. Except as set forth in Section 2.9 of the Disclosure Schedule or as contemplated by this AgreementAgreement or the Related Agreements, since from January 31, 1999 through the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(cb) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or exceeding $50,000 or in the aggregateaggregate exceeding $100,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation depreciation, revenue recognition or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock Company Capital Stock or any direct or indirect redemption, purchase or other acquisition by the Company of the CompanyCompany Capital Stock;
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(i) acquisitionany agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound other than in the ordinary course of the Company's business, consistent with past practice;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots properties other than in the Projectordinary course of the Company's business, consistent with past practice;
(k) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practice;
(l) incurrence by the Company of any liability in excess of $50,000 individually or $100,000 in the aggregate;
(m) waiver or release of any right or claim of the Company, Company including any write-off or other compromise of any account receivable of the CompanyCompany (other than compromises of invoices with customers in the ordinary course of business consistent with past practice, which compromises are not in the aggregate material in amount or significance);
(mn) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of against the Company or its affairs, including the Project;
(no) notice of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13) or of infringement by the Company of any other person's Intellectual Property (as defined in Section 2.13);
(p) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Capital Stock or securities exchangeable, convertible or exercisable therefor, or any securities, warrants, options or rights to purchase any of the foregoing, except for options to purchase capital stock of the Company granted to employees of and consultants to the Company in the ordinary course of business consistent with past practice;
(i) selling or entering into any material license agreement with respect to the Company Intellectual Property with any third party or (ii) buying or entering into any material license agreement with respect to the Intellectual Property of any third party;
(r) any event or condition of any character that has or could be reasonably expected to have had a material adverse impact Material Adverse Effect on the Company;
(os) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of transaction by the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qt) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Etoys Inc), Merger Agreement (Etoys Inc)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ----------------- Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against investigation of the Company or its affairs;
(p) hiring of, notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or offer of employment to, infringement by the Company of any employees (or if an offer was accepted people that would become employees); orthird party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or may have a Material Adverse Effect on the Company or;
(t) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
No Changes. Except as contemplated by this AgreementSince January 1, since the date of the Interim Balance Sheet2016, there has not been, occurred or arisen arisen, any:
(a) transaction by modifications, amendments or changes to the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCharter Documents;
(b) amendments expenditure, transaction or changes commitment exceeding $100,000 individually or $500,000 in the aggregate (excluding, in both cases, any expenditures, transactions or commitments related to the Articles salary or other compensation (including equity-based compensation) payable or to become payable by Seller to any of Incorporation its respective officers, directors, employees or Bylaws of consultants), in each case as related to the CompanyPurchased Assets;
(c) expenditure payment, discharge, waiver or commitment by satisfaction of any Liability of Seller Parties or of the Company in excess of $10,000 individually Business related to the Purchased Assets, other than payments, discharges or $50,000 satisfactions in the aggregateOrdinary Course of Business of Liabilities;
(d) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company Seller Parties (whether or not covered by insurance), including in each case relating to the PropertyPurchased Assets;
(e) employment dispute filed or threatened in writing by any individual, Governmental or Regulatory Body, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging wrongful discharge or any other unlawful employment or labor practice or action with respect to Seller, in each case as related to the Purchased Assets;
(f) adoption of or change in material accounting methods or practices (including any change in depreciation or amortization policies or rates) by Seller other than as required by GAAP and which is primarily related to the Company;
(f) revaluation by the Company of any of its assets, including the PropertyPurchased Assets;
(g) declarationadoption of or change in any election in respect of Taxes, setting aside adoption or payment change in any accounting method in respect of a dividend Taxes, agreement or other distribution with settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, in each case as related to the capital stock of the CompanyPurchased Assets;
(h) material other than in the Ordinary Course of Business, (i) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by Seller to any of the Continuing Employees, or (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by Seller of a severance payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any compensation arrangement or agreement with any employee, officer, director or stockholderof the Continuing Employees;
(i) acquisitionContract, covenant, instrument, lease, license or commitment to which Seller Parties are a party that relates to the Purchased Assets or by which any of the Purchased Assets are bound or any termination, extension, amendment or modification of the terms of any such Contract, other than in the Ordinary Course of Business;
(j) sale, lease, license or other disposition of any of the assets Purchased Assets, including the sale of the Companyany accounts receivable of Seller Parties related thereto, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the ProjectPurchased Assets;
(k) loan by the Company Seller Parties to any PersonPerson (except for advances to employees for travel and business expenses in the Ordinary Course of Business consistent with past practices), or purchase by Seller Parties of any debt securities of any Person or amendment to the terms of any outstanding loan agreement, in each case as related to the Purchased Assets;
(l) incurring by the Company Seller Parties of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company Seller Parties of any indebtedness, issuance or sale of any debt securities of the Company Seller Parties or guaranteeing by the Company of any debt securities of others, except for obligations to reimburse employees for travel and business expenses incurred in the Ordinary Course of Business consistent with past practices, in each case as related to the Purchased Assets;
(lm) waiver or release of any material right or claim of Seller Parties relating to the CompanyPurchased Assets, including any write-off waiver, release or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the ProjectSeller Parties that would reasonably be expected to exceed $100,000;
(n) commencement or settlement of any lawsuit by Seller Parties related to the Purchased Assets, or the commencement, settlement, notice or, to the Knowledge of Seller Parties, threat of any lawsuit or proceeding or other investigation related to the Purchased Assets against Seller Parties or their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(o) notice of any claim or potential claim of ownership, interest or right by any Third Party of any of the Transferred IP, or of infringement or misappropriation by Seller Parties in the operation of the Business of any other Person’s Intellectual Property Rights;
(p) (i) sale, lease, license or transfer of any Purchased Assets or execution, modification or amendment of any agreement with respect to the Purchased Assets with any Person or with respect to the Intellectual Property of any Person, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, for use by the Business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a Third Party, for use by the Business or (iv) change in pricing or royalties set or charged by Seller Parties in the Business to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to Seller Parties for use in the Business;
(q) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyMaterial Adverse Effect;
(or) agreement by Seller Parties to acquire by merging or consolidating with, or by purchasing any agreementassets or equity securities of, contractor by any other manner, lease any business or commitment corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any extension equity securities that are material, individually or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesaggregate, or (iv) involves to the sale of, lease of or transfer of any interest in any material assetsBusiness;
(ps) hiring ofexecution of any strategic alliance, affiliate or offer joint marketing arrangement or agreement by Seller Parties related to the Purchased Assets;
(t) cancellation, amendment or renewal of employment toany insurance policy of Seller Parties related to the Purchased Assets;
(u) issuance or agreement to issue any refunds, any employees (credits, allowances or if an offer was accepted people that would become employees)other concessions with customers related to the Purchased Assets in excess of $100,000; or
(qv) negotiation or agreement by the Company Seller Parties, or any officer or employees thereof on behalf of Seller Parties, to do any of the things described in the preceding clauses (a) through (py) of this Section 2.12 (other than negotiations with Monaco or the Buyer Parties and their representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 2 contracts
Sources: Asset Purchase Agreement (INPHI Corp), Asset Purchase Agreement (Rambus Inc)
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.24, since the date of the Interim Balance SheetDecember 31, 2007 there has not been, occurred or arisen anyany of the following:
(a) transaction any amendment to the Seller Organizational Documents;
(b) any incurrence or assumption by the Company Business of any indebtedness in excess of $5,000 individually or $25,000 in the aggregate;
(c) the imposition of any Lien (other than Permitted Liens) upon any of the Transferred Assets;
(d) any material damage, destruction or loss with respect to the Transferred Assets or any other real or tangible personal property used in the Business, whether or not covered by insurance;
(e) any payment, loan or advance of any amount to, or sale, transfer or lease of any of the Transferred Assets to, or any agreement or arrangement relating to the Business or constituting a Transferred Asset with, any member or equity holder of Seller or any of their respective affiliates;
(f) any change in the Tax or accounting principles, methods, practices or procedures followed by Seller or any change in the depreciation or amortization policies or rates theretofore adopted by Seller, except as required by GAAP or disclosed to Purchaser in writing;
(g) any change or revocation by Seller of any Tax election with respect to the Business or any agreement or settlement with any governmental entity with respect to such Taxes;
(h) any acquisition by Seller by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof comprising all or a portion of the Business or the Transferred Assets;
(i) any sale, lease or other transfer or disposition by Seller of its assets related to the Business, tangible or intangible, other than the sale of Product in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(bj) amendments any Contract (or changes series of related Contracts) related to the Articles of Incorporation or Bylaws of the Company;
Business and entered into by Seller either involving more than $25,000 individually (c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss outside the ordinary course of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectbusiness;
(k) loan by the Company to any Personacceleration, incurring by the Company termination, modification or cancellation of any indebtedness, guaranteeing by Assumed Contract involving more than $25,000 individually (or $50,000 in the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersaggregate);
(l) any capital expenditure (or series of related capital expenditures) related to the Business by Seller either involving more than $25,000 individually (or $50,000 in the aggregate) or outside the ordinary course of business;
(m) any capital investment in, any loan to or any acquisition of the securities or assets of, any other person by Seller with respect to or in connection with the Business;
(n) any delay or postponement of payment of accounts payable or other liabilities of Seller with respect to or in connection with the Business outside the ordinary course of Business consistent with past practice;
(o) any cancellation, compromise, waiver or release of any right or claim of Seller with respect to or in connection with the Company, including any write-off or other compromise Business outside the ordinary course of any account receivable of the CompanyBusiness consistent with past practice;
(mp) the commencement or written notice to Seller or, to Seller’s Knowledge, oral notice or threat of commencement of any lawsuit or judicial or administrative proceeding against the Transferred Assets or investigation of against Seller with respect to the Company Transferred Assets, the Product or its affairs, including the ProjectBusiness;
(nq) any event license or condition sublicense of any character that has rights of Seller under or could be reasonably expected with respect to have a material adverse impact on the CompanyTransferred Technology;
(or) any agreementwritten notice or claim to Seller or, contractto Seller’s Knowledge, lease oral notice or commitment claim of ownership by any Person of Business Intellectual Property or any extension or modification of infringement by the terms Business of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsPerson’s intellectual property rights;
(ps) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)material change in pricing charged by Seller for Products; or
(qt) any negotiation or agreement by the Company Seller or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Purchaser and their its representatives regarding the transactions contemplated by this Agreement). Since December 31, 2007, no Business Material Adverse Effect has occurred, and no event, circumstance, condition or effect has occurred that could reasonably be expected to result in a Business Material Adverse Effect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Osiris Therapeutics, Inc.), Asset Purchase Agreement (Nuvasive Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Company Current Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on as of the date of the Interim Company Current Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Organizational Documents of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock any units of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its units;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) any Lien placed on any of the Transferred Assets which remains in existence on the date hereof;
(l) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring the incurrence by the Company of any indebtedness, guaranteeing the guaranty by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company guaranty of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) any contingent liabilities incurred by the Company with respect to the obligations of any other person that would be assumed hereunder;
(p) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(nq) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(r) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(s) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(t) event or condition of any character that has or could be reasonably expected to have a material adverse impact Company Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qu) any postponement or delay in payment of any accounts payable or other liability of the Company that will be included as Assumed Liabilities;
(v) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Healtheon and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
No Changes. Except as contemplated by this Agreementset forth on Schedule 3.10 since the Balance Sheet Date, the Companies have conducted its business only in the Ordinary Course of Business. Without limiting the generality of the foregoing sentence, since the date of Balance Sheet Date, except as disclosed in this Agreement or the Interim Balance Sheetschedules hereto, there has not been, occurred been any: (i) material uninsured damage to any property owned or arisen any:
(a) transaction leased by the Company Companies; (ii) labor strike; (iii) declaration or payment of any dividend or redemption of any shares of capital stock, except the Permitted Dividends; (iv) increases in the salaries or bonuses of any employee of the Companies outside of the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any bonuses to the Sellers or other distribution with respect to the capital stock officers of the Company;
Companies; (hv) capital expenditures or other asset acquisition or expenditure out of the ordinary course of business; (vi) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
Company plan described in Section 3.22; (ivii) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company asset other than in the ordinary course of business as conducted on that date and consistent with past practicesbusiness; (viii) payment, prepayment or (iv) involves the sale of, lease of or transfer discharge of any interest material liability other than in the ordinary course of business; (ix) write-offs or write-downs of any assets of the Companies out of the ordinary course of business, except there shall be no write offs or write downs of receivables outstanding as of December 31, 1996 under any circumstances without Buyer's prior written consent; (x) change in the Board of Directors or management of the Companies; (xi) change in the Companies' method of accounting; (xii) material change in the operations of the Companies; (xiii) issuance or sale of stock of the Companies or options to purchase stock of the Companies; (xiv) contract entered into by the Companies which is material to its operations; (xv) any material assets;
encumbrance attaching to assets of the Companies; (pxvi) hiring of, any prepayment of Long Term Debt (xvii) any agreement or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof commitment to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Atlantic Express Transportation Corp), Stock Purchase Agreement (Atlantic Express Transportation Corp)
No Changes. Except Since the Financial Statement Date, except as contemplated by this Agreementset forth on Schedule “3.24”, since the date of Company has carried on business and conducted its operations and affairs only in the Interim Balance Sheet, ordinary and normal course consistent with past practice and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date any issuance, sale, pledge, hypothecation, lease, disposition or Lien or agreement to do any of the Interim Balance Sheet and consistent foregoing with past practices;
(b) amendments respect to any shares or changes to the Articles of Incorporation other corporate securities or Bylaws any right, option or warrant with respect thereto of the Company;
(b) an amendment or proposal to amend its Articles or by-laws;
(c) expenditure any split, combination or commitment by the Company in excess reclassification of $10,000 individually or $50,000 in the aggregateany of its securities;
(d) destruction of, damage to or loss of any material assetsadverse change in the condition (financial or otherwise), Assets, liabilities, operations, earnings, business or customer prospects of the Company Company;
(e) any damage, destruction or loss (whether or not covered by insurance), including ) affecting the Property;
(e) change Assets or any failure to regularly maintain and repair the Assets in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Companyordinary course of business;
(f) revaluation any issuance or sale by the Company or any contract entered into by the Company for the issuance or sale by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to shares in the capital stock of or securities convertible into or exercisable into shares in the capital of the Company;
(g) any license, sale, assignment, transfer, disposition, pledge, mortgage or granting of a security interest or other Lien on or over any Assets;
(h) material change any write-off as uncollectible of any Accounts Receivable or any portion thereof of the Company in any compensation arrangement or agreement with any employee, officer, director or stockholderamounts exceeding the allowance set out in the Financial Statements;
(i) any cancellation of any other debts or claims or any amendment, termination or waiver of any other rights to the Company;
(j) any material change in the accounting or tax practices followed by the Company
(k) any material change adopted in the depreciation or amortization policies or rates or any material change in the credit terms offered to customers of or by suppliers to the Company;
(l) any acquisition, saletransfer, leaseassignment, license sale or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots shown in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company Financial Statements other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(pm) hiring ofany institution or settlement of any litigation, action or offer of employment to, proceeding before any employees (court or if an offer was accepted people that would become employees)governmental body by or against the Company; orand/or
(qn) negotiation the creation of any debts and/or liabilities whatsoever (whether accrued, absolute, contingent or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (aotherwise) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)set forth in Schedule “F”.
Appears in 2 contracts
Sources: Purchase Agreement (Tara Minerals Corp.), Purchase Agreement (Tara Gold Resources Corp.)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 20,000 individually or $50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Balance Sheet
(e) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(ef) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fi) revaluation by the Company of any of its assets, including the Property;
(gj) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hk) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholder;such person except as described in Section 2.7(k) of the Company Schedule.
(il) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except for fair market value to the Company in the ordinary course of any security interest in such assets or properties, including the Propertybusiness and consistent with past practices;
(jm) amendment or termination (other than pursuant to its terms) of any contract described in Section 2.12(a) of the Company Schedule, material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;,
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lo) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and business, consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring ofissuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities, except for the issuance of Company Common Stock upon the issuance of stock options;
(q) change in any employees material respect in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen anyany of the following:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(dc) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) the Propertyvalue of which is in excess of $20,000 in the aggregate;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) Company or the revaluation by the Company of any of its assets, including the Property;
(gf) except as set forth in Section 3.7(f) of the Disclosure Schedule, declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock Company Capital Stock, or any direct or indirect redemption, purchase or other acquisition by the Company of any Company Capital Stock;
(g) except as set forth in Section 3.7(g) of the Disclosure Schedule, increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(h) material change acquisition, sale or transfer of any asset of the Company in any compensation arrangement excess of $5,000 individually or agreement with any employeein the aggregate, officer, director or stockholderexcept in the ordinary course of business as conducted on that date;
(i) acquisitionbreach, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any distribution agreement or any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is boundbound other than termination by the Company pursuant to the terms thereof;
(j) any creation or assumption by the Company of any mortgage, including pledge, security interest or lien or other encumbrance on any purchase asset (other than liens arising under existing lease financing arrangements which are not material and sale agreements liens for lots in the Projecttaxes not yet due and payable);
(k) except as set forth in Section 3.7(k) of the Disclosure Schedule, any entry into, amendment of, relinquishment, termination or non-renewal by the Company of any contract, lease transaction, commitment or other right or obligation requiring aggregate payments by the Company in excess of $10,000;
(l) Any transfer or grant of a right under the Company Intellectual Property Rights (as defined in Section 3.11 below), other than those transferred or granted in the ordinary course of business consistent with past practice; (m) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, except for the execution of this Agreement and the other agreements contemplated hereby and the taking of actions contemplated hereby, there has not been, occurred or arisen any:
(ai) transaction by any Material Adverse Effect, other than continuing operating losses and losses attributable to the abandonment of leasehold improvements that will result when the Company except vacates its premises in connection with the ordinary course of business as conducted on the date termination of the Interim Balance Sheet and consistent with past practiceslease for its current space at 46 ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(bii) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property) to property which could reasonably be expected to have a Material Adverse Effect;
(eiii) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of the capital stock of the Company or the Subsidiary, or any direct or indirect redemption, purchase or other acquisition of such stock;
(iv) except as set forth on the Disclosure Schedule, any option, warrant or right to purchase the capital stock of the Company or of the Subsidiary granted to any person, or any employment or deferred compensation agreement entered into between the Company or the Subsidiary and any of their respective officers, directors or consultants;
(v) any issuance or sale by the Company or by the Subsidiary of any stock (other than upon the exercise of stock options), bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of the Company or of the Subsidiary;
(vi) any labor union trouble (including without limitation any negotiation, or request for negotiation, with respect to any union representation or any labor contract) respecting the capital stock Company or the Subsidiary;
(vii) to the Company's knowledge, any statute, rule or regulation, or any government policy, adopted which pertains particularly to the Company's business (and not businesses in general) and which may materially and adversely affect the business or assets of the Company;
(hviii) material change any mortgage, lien, attachment, pledge, encumbrance or security interest created on any asset, tangible or intangible, of the Company or of the Subsidiary, or assumed, either by the Company or by others, with respect to any such asset, except for liens for taxes not yet due, and for equipment leases and purchase money security interests entered into in any compensation arrangement or agreement with any employee, officer, director or stockholderthe ordinary course of business;
(iix) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement or attributable to the obligations of the Company under this Agreement or the preparation thereof) engaged in, by the Company or by the Subsidiary, except those in the ordinary course of business;
(x) any obligation or liability discharged or satisfied by the Company or by the Subsidiary, except items included in current liabilities shown on the Balance Sheet and current liabilities incurred since the date of the Balance Sheet in the ordinary course of business;
(xi) any sale, assignment, lease, license transfer or other disposition of any tangible asset of the Company or of the Subsidiary, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, or any creation of any security interest in such assets or propertiestrademarks, including the Property;
(j) amendment or termination of any material contracttrade names, agreementbrand names, permitcopyrights, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off licenses or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairsintangible assets, including the Project;
(n) any event or condition of any character that has or could be reasonably expected except pursuant to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than license agreements entered into in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(pxii) hiring ofany amendment, termination or offer waiver of any material right belonging to the Company or to the Subsidiary;
(xiii) any increase in the compensation or benefits payable or to become payable by the Company or by the Subsidiary to any of its officers or employees except for ordinary increases for non-management employees in accordance with prior practice;
(xiv) except as set forth on the Disclosure Schedule, any transaction or contract with a director or officer of the Company or of the Subsidiary (whether executive officer or division officer) or a member of any such director's or officer's family, including a loan, change of employment toconditions, any employees (change of pension rights or if an offer was accepted people that would become employees)bonus, not approved in writing by KLA-Tencor; or
(qxv) negotiation or agreement by the Company or any officer or employees thereof to do audit of any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Tax.
Appears in 1 contract
Sources: Merger Agreement (Qc Optics Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim ---------- Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Cirrus Logic Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in an amount in excess of $25,000 in any one case, or $100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Balance Sheet;
(e) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) exceeding $25,000 individually or $100,000 in the Propertyaggregate;
(ef) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fi) revaluation by the Company of any of its assets, including the Property;
(gj) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hk) material change increase in the salary or other compensation payable or to become payable to any of the Company's officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as described in Section 2.7(k) of the Company Schedule;
(il) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except for fair market value to the Company in the ordinary course of any security interest in such assets or properties, including the Propertybusiness and consistent with past practices;
(jm) amendment or termination (other than pursuant to its terms) of any material contract described in Section 2.12(a) of the Company Schedule or any contract, agreement, permit, approval license or license to which agreement described in Section 2.11(n) of the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the ProjectSchedule;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lo) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and business, consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring ofissuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities, except for (i) the issuance of Company Common Stock or Company Preferred Stock upon the exercise of the Company Options or Company Warrants described in Schedules 2.2(b) and 2.2(c); and (ii) the grant of options to acquire Company Common Stock pursuant to and in accordance with the Option Plan in accordance with past practices and in amounts and under circumstances which will not prevent the accounting for the transactions contemplated by this Agreement as a pooling of interests;
(q) change in any employees material respect in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this AgreementSince August 31, 1998, (the "Balance Sheet Date"), Seller has operated the Business only in the ordinary course of business, consistent with past practice. Without limiting the foregoing, since the date of the Interim Balance SheetSheet Date, except as disclosed in Schedule 2.5 hereto, there has not been, occurred or arisen any:
(a) transaction by the Company except any change in the salaries or other compensation payable or to become payable to, or any advance (excluding advances for ordinary course of business as conducted on the date of the Interim Balance Sheet and expenses consistent with past business practices) or loan to, any Employee (as defined in Section 2.16.1, below);
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss any hiring of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company employee other than in the ordinary course of business;
(c) any act by Seller which would jeopardize the relationship of Seller with any supplier, customer, sales representative, health care provider, third party payor and others having business as conducted on that date and relations with them;
(d) any disposition of, or failure to keep in effect, any rights in, to or for the use of any Permit;
(e) any modification, amendment or termination of any Assumed Contract or any waiver of any rights of Seller in respect of any Assumed Contract or any Acquired Asset;
(f) any execution, modification, amendment or termination of any employment contract, change in control agreement or severance agreement;
(g) any damage, destruction or loss affecting the Acquired Assets in excess of $10,000, whether or not covered by insurance;
(h) any change by Seller in its method of accounting or keeping its books of account or accounting practices;
(i) any sale, transfer or other disposition of any assets, properties or rights of the kind included in the Acquired Assets, except sales of inventory in the ordinary course of business consistent with past practices, practice and sales of other assets at fair market value with an aggregate value of less than $25,000;
(j) any commitments or agreements for capital expenditures or capital additions or betterments by Seller exceeding in the aggregate $10,000;
(ivk) involves any major investments exceeding in the sale of, lease aggregate $10,000;
(l) any conduct of or transfer Seller's business in violation of any interest applicable laws, rules, regulations, ordinances, codes, judgments and orders;
(m) any change in any material assetspolicy of insurance owned or held by or covering the Business, the Acquired Assets and/or Seller;
(n) any incurrence of any liability (whether or not pursuant to written contract and whether or not contingent) requiring an ongoing financial commitment exceeding $5,000; provided, however, that this Section 2.5(n) shall not apply to (i) commitments or agreements for capital expenditures or capital additions or betterments by Seller and (ii) those borrowing arrangements of Seller specifically set forth on Schedule 2.5(n);
(o) any assumption, guarantee or incurrence of debt;
(p) hiring ofany event or circumstance that has or could reasonably be expected to have a Material Adverse Effect;
(q) any distribution or declaration of dividends by Seller;
(r) any amendment of Seller's Articles of Incorporation or Bylaws;
(s) any actions, suits, investigations or offer proceedings pending against or, to Seller's knowledge, threatened against or affecting, Seller or any Acquired Assets before any court or arbitrator or governmental authority;
(t) any mortgage, pledge or subjection to lien of employment to, any employees (or if an offer was accepted people that would become employees)the Acquired Assets; or
(qu) negotiation any agreement, in writing or agreement by the Company or any officer or employees thereof otherwise, to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 1 contract
No Changes. Except Since the Balance Sheet Date, except as contemplated by this Agreement, since the date set forth on Section 2.10 of the Interim Balance SheetDisclosure Schedule, there has not been, occurred or arisen any:
(a) other than immaterial transactions with a total monetary value that does not exceed $50,000 individually or $200,000 in the aggregate, transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 50,000 individually or $50,000 200,000 in the aggregate, except as contemplated by the Company’s 2008 operating plan approved by the Company’s Board of Directors, a copy of which has been provided to Parent;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $200,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, of liabilities reflected or reserved against in the Current Balance Sheet or arising in the ordinary course of business since the Balance Sheet Date;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(ef) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) adoption of or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Common Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) material change increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(il) acquisition, Material Contract or any termination or amendment thereof;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company to any Personperson or entity, incurring or purchase by the Company of any debt securities of any person or entity, except for advances to employees for travel and business expenses in the ordinary course of business in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;
(o) incurrence by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lp) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against or investigation of the Company or its affairs, including or any reasonable basis for any of the Projectforegoing;
(nr) written notice or, to the Knowledge of the Company, oral notice, of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company of any other person’s Intellectual Property Rights (as defined in Section 2.14 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plan or issuances of shares of Company Common Stock or Company Preferred Stock upon the exercise of Company Warrants;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property Rights of any person or entity, (ii) except in the ordinary course of business, consistent with past practice, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entity, (iii) agreement or material modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Technology or Intellectual Property Rights to the Company;
(u) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ov) any agreementlease, contractlicense, lease sublease or commitment or any extension or modification of the terms other occupancy of any agreement, contract, lease or commitment which Leased Real Property (ias defined in Section 2.13 hereof) involves by the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Company; or
(qw) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pw) of this Section 2.10 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementspecifically set forth in Schedule 2.7, since the date of the ---------- Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of Company, exceeding $10,000 individually or $50,000 20,000 in the aggregate;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance);
(d) labor trouble, including the Propertyclaim of wrongful discharge, claim of other unlawful labor practice or any strike, work stoppage or union organization activities;
(e) change in accounting methods or practices (including any change in reserve, depreciation or amortization policies or rates) by the Company;
(f) revaluation (upward or downward) by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(h) material change increase in the salary, commissions or other compensation payable or to become payable by the Company to any of its officers, directors, employees, advisors or consultants or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary, commissions or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(i) acquisition, sale, lease, license sale or other disposition transfer of any of the assets asset of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) amendment or termination of any material contractContract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance person or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersentity;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties paid or charged by the Company since February 1, 1997, other than in the ordinary course of business;
(q) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the CompanyMaterial Adverse Effect;
(or) any agreement, contract, lease distribution of cash or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate other assets of the Company other than to any third parties (except in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesbusiness); or
(qs) negotiation or agreement by the Company or the Shareholders, or any other officer or employees thereof of the Company to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or the Parent, the Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Asset Acquisition Agreement (Global Motorsport Group Inc)
No Changes. Except as contemplated by this Agreement, since Since the Balance Sheet Date through to and including the date hereof, except in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the consummation of the Interim Balance SheetTransactions, there has not been, occurred or arisen any:
(a) transaction by the business of the Company except and each Company Subsidiary has been conducted in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
practice; (b) amendments there has not been any Effect that has had or changes would reasonably be expected to have, individually or in the Articles of Incorporation or Bylaws of the Company;
aggregate, a Company Material Adverse Effect; and (c) the Company and the Company Subsidiaries have not taken any of the following actions, except as contemplated hereby or set forth on Section 2.9:
(a) make or agree to make any capital expenditure or commitment by the Company in excess of exceeding $10,000 75,000 individually or $50,000 200,000 in the aggregate;
(db) destruction of, damage acquire or agree to acquire or loss dispose or agree to dispose of any material assets, business or customer assets (including intangible) of the Company any Company Subsidiary or any business enterprise or division thereof outside the ordinary course of the business of the Company or such Company Subsidiary and consistent with past practice, or merge or consolidate with or into any other Person;
(whether c) propose or not covered by insuranceadopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary;
(d) made any material change in the Manufacturing, selling, distribution, advertising, terms of sale or collection practices with respect to the Company Products that is outside the ordinary course of business, (ii) enter into any material business practices, programs or long-term allowances outside the ordinary course of business, including varying any inventory practices with respect to inventory of the Company Products in any respect materially inconsistent with past practice, or (iii) engage in the practice of “channel stuffing” or any similar program, activity or other action (including any rebate, promotion, credit, discount, chargeback or refund policy or practice) with respect to the Company Products that, in each case ((i) through (iii)), including is intended or would reasonably be expected to result in a trade buyin that is in excess of normal customer purchasing patterns of the PropertyCompany’s and the Company Subsidiaries’ business during the twelve months prior to the date hereof;
(e) change in accounting methods commence or practices (including settle any change in depreciation Action or amortization policies threat of any Action by or rates) by against the CompanyCompany or any Company Subsidiary or relating to any of their businesses, properties or assets, or otherwise enter into any release, settlement or similar agreements;
(f) revaluation by pay, discharge, release, waive or satisfy any claims, rights or liabilities, other than the Company payment, discharge or satisfaction in the ordinary course of any business of its assets, including liabilities reflected on the PropertyCurrent Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date;
(g) declaration, setting aside adopt or payment of a dividend change accounting methods or practices used by the Company other distribution with respect to the capital stock of the Companythan as required by GAAP;
(h) material make or change in any compensation arrangement Tax election or agreement with adopt or change any employee, officer, director Tax accounting method or stockholderreceive or request any Tax ruling or amend any Tax Return;
(i) acquisitionadopt, salemodify, lease, license amend or other disposition of any of the assets of the Companyterminate, or start a termination process of, any creation of Company Employee Plan or any security interest in such assets or propertiesEmployee Agreement, including the Propertyany indemnification agreement, enter into or amend any Employee Agreement or otherwise hire or terminate or cause to resign any Person as or from being an Employee;
(j) amendment increase or termination of make any material contract, agreement, permit, approval or license other change that would result in increased cost to which the Company is a party or any Company Subsidiary to the salary, wage rate, incentive compensation opportunity, employment status, title or other compensation (including equity-based compensation) payable or to become payable by which it is bound, including the Company or such Company Subsidiary to any purchase and sale agreements for lots in Employee outside the Projectordinary course of business;
(k) loan by make any declaration, payment, commitment or obligation of any kind for the Company payment (whether in cash, equity or otherwise) of a severance payment or other change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any PersonEmployee, incurring by except payments made pursuant to written agreements existing on the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities date hereof and disclosed in Section 2.9(k) of the Company or guaranteeing by the Company of any debt securities of othersDisclosure Schedule;
(l) waiver cancel, amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) or release of fail to renew (on substantially similar terms) any right or claim insurance policy of the Company, including any write-off Company or other compromise of any account receivable of the Companysuch Company Subsidiary;
(m) commencement send any written communications (including electronic communications) to Employees regarding this Agreement or notice the Transactions or threat of commencement of make any lawsuit representations or judicial issue any communications to Employees that, in each case, are inconsistent with this Agreement or administrative proceeding against or investigation of the Company or its affairsTransactions, including the Projectany representations regarding offers of employment from Parent;
(n) discount any event accounts receivable of the Company or condition such Company Subsidiary, or accelerate the collection of any character that has accounts receivable or could be reasonably expected to have a material adverse impact on delay the Companypayment of any accounts payable, other than in the ordinary course of business;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicespractice, (i) introduce any material new products or services or any material marketing campaigns or (ivii) involves the sale of, lease of or transfer of any interest in introduce any material assetsnew sales compensation or incentive programs or arrangements;
(p) hiring ofapply for, negotiate or offer of employment to, accept any employees (or if an offer was accepted people that would become employees)Government Grant; or
(q) negotiation agree in writing or agreement by the Company or any officer or employees thereof otherwise to do take, any of the things actions described in the preceding foregoing clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
Sources: Merger Agreement (Bioventus Inc.)
No Changes. Except as contemplated by this AgreementSince September 30, since 2004 to the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of that has exceeded $10,000 50,000 individually or $50,000 100,000 in the aggregate;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance);
(d) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which the Company is aware or other unlawful labor practice or action of which the Company has received written notice or of which the Company is aware; Section 2.6(d) of the Company Disclosure Schedule includes a list of all employees who have been terminated by the Company since January 1, including the Property2002;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assetsassets other than depreciation as required by GAAP and reflected on the September Balance Sheet or depreciation since March 31, including 2004 at the Propertysame rate as during the first quarter of 2004;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution (whether in cash, stock or property) in respect of any of the Company Stock, or any split, combination or reclassification of any of the Company Stock or the issuance or authorization of the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company Stock, or the repurchase, redemption or other distribution with respect to the capital stock acquisition, directly or indirectly, of any shares of the CompanyCompany Stock (or options, warrants, or other rights exercisable therefor);
(h) material change increase of over 10% in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement to any such person, or agreement with any employee, officer, director grants of options or stockholderother employee stock awards;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the PropertyCompany’s business;
(j) amendment or termination or violation of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound other than termination by the Company pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company of any indebtednessindebtedness (other than the endorsement of checks in the ordinary course of business), issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any material write-off or other compromise of any account receivable of the Company;
(m) the commencement or and notice or or, to the knowledge of the Company, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the ProjectCompany;
(n) claim asserted to the Company (including any director, officer, or shareholder thereof) of ownership by a third party of the Company’s Intellectual Property (as defined in Section 2.10 below), or to the knowledge of the Company, of infringement by the Company of any third party’s Intellectual Property rights;
(o) issuance, sale or exchange by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other securities;
(p) change in pricing or royalties set or charged by the Company, other than pricing changes made in the ordinary course of business;
(q) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than by negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sonic Innovations Inc)
No Changes. Except as contemplated by this AgreementSince December 31, since 1999 to the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company or its subsidiaries except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of or its subsidiaries that has exceeded $10,000 50,000 individually or $50,000 100,000 in the aggregate;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company or its subsidiaries (whether or not covered by insurance);
(d) labor trouble or claim of wrongful discharge of which the Company or its subsidiaries has received written notice or of which the Company is aware or other unlawful labor practice or action; Section 2.6(d) of the Company Disclosure Schedule includes a list of all employees who have been terminated by the Company since January 1, including the Property1998;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assetsassets other than depreciation as required by GAAP and reflected on the March Balance Sheet or depreciation since March 31, including 2000 at the Propertysame rate as during the first quarter of 2000;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution (whether in cash, stock or property) in respect of any of the Company Common Stock, or any split, combination or reclassification of any of the Company Common Stock or the issuance or authorization of the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company Common Stock, or the repurchase, redemption or other distribution with respect to the capital stock acquisition, directly or indirectly, of any shares of the CompanyCompany Common Stock (or options, warrants, or other rights exercisable therefor);
(h) material change increase of over 10% in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement to any such person, or agreement with any employee, officer, director grants of options or stockholderother employee stock awards;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation of any security interest its subsidiaries, except in such assets or properties, including the Propertyordinary course of business;
(j) amendment or termination or violation of any material contract, agreement, permit, approval agreement or license to which the Company or any of its subsidiaries is a party or by which it is bound, including any purchase and sale agreements for lots or they are bound other than termination by the Company or such subsidiary pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company or any of its subsidiaries to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company or any of its subsidiaries of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company or any of its subsidiaries of any indebtednessindebtedness (other than the endorsement of checks in the ordinary course of business), issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the CompanyCompany or any of its subsidiaries, including any material write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or, to the knowledge of the Company or its subsidiaries, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or any of its subsidiaries or their affairs, including the Project;
(n) claim asserted to the Company (including any director or officer thereof) of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.10 below), or to the knowledge of the Company, of infringement by the Company or any of its subsidiaries of any third party's Intellectual Property rights;
(o) issuance, sale or exchange by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other securities;
(p) change in pricing or royalties set or charged by the Company, other than pricing changes made in the ordinary course of business;
(q) any event or condition of any character that has had or could be is reasonably expected likely to have a material an effect that is materially adverse impact on to the condition (financial or otherwise), properties, assets, liabilities, business, operating, results of operations or, to the Company;
(o) any agreement's knowledge, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate prospects of the Company other than in the ordinary course of business and its subsidiaries taken as conducted on that date and consistent with past practices, or a whole (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesa " Material Adverse Effect"); or
(qr) negotiation or agreement by the Company Company, any of its subsidiaries or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than by negotiations with Monaco or Buyer SCM and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (SCM Microsystems Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetSheet Date, there has not been, ---------- occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $250,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtednesssuch person; except in the ordinary course of business and consistent ------ with past practice, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities exclusive of the Company or guaranteeing by the Company of any debt securities of othersPrincipal Employees;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company --------- Agreement which (i) involves the payment of greater than $25,000 50,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others; except for the incurrence of trade debt and advances ------ to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) to the knowledge of the Company or any Company Shareholder, the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities; except for (1) ------ securities issued in connection with the exercise of Company Options and the conversion of any Preferred Stock and (2) options granted pursuant to Section 4.1(l);
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. For purposes of this Section 2.10 “in the aggregate” shall refer to a series of related transactions with a single party or group of related parties. Except as contemplated expressly permitted under or required under this Agreement or specifically consented to by this Agreement, since the date of the Interim Balance SheetParent pursuant to Section 4.1 or Section 4.3 hereof, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practicespractices since the Balance Sheet Date;
(b) modifications, amendments or changes to the Articles Charter Documents or organizational documents of Incorporation or Bylaws of the Companyany Subsidiary since December 31, 2007;
(c) expenditure expenditure, transaction or commitment exceeding $50,000 individually or $100,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company in excess or any of $10,000 individually or $50,000 in its Subsidiaries since the aggregateBalance Sheet Date;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries) since the Balance Sheet Date, other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), including ) since the PropertyBalance Sheet Date;
(ef) employment dispute involving the Company, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries since December 31, 2007;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP since December 31, 2007;
(fh) adoption of or change in any Tax accounting method or material Tax election, closing agreement in respect to Taxes, or settlement of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment since December 31, 2007;
(i) revaluation by the Company or any of its Subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable since December 31, 2007;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the Companycapital stock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor) since December 31, 2007;
(hk) material increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity or other property) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person since the Balance Sheet Date;
(l) agreement, contract, covenant, instrument, lease, license or commitment involving an expenditure, commitment or transaction exceeding $50,000 individually or $100,000 in the aggregate to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets (whether tangible or intangible) are bound or any termination, extension, waiver, amendment or modification of the terms of any Contract other than (i) acquisition, licenses of Company Products in the ordinary course of business and in substantially the form provided or made available to Parent or (ii) as specifically permitted by this Agreement since the Balance Sheet Date;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the CompanyCompany or any of its Subsidiaries other than licenses of Company Products in the ordinary course of business and in substantially the form attached to Section 2.10(l) of the Disclosure Schedule, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties, including properties since the PropertyBalance Sheet Date;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company or any of its Subsidiaries to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices since December 31, 2007;
(o) incurring by the Company or any of its Subsidiaries of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices since December 31, 2007;
(lp) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries since December 31, 2007;
(mq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing since December 31, 2007;
(r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its affairsSubsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property since December 31, including the Project2007;
(ns) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any event or condition of its Subsidiaries, of any character that has shares of Company Capital Stock or could be reasonably expected to have a material adverse impact on the Company;
(o) shares of capital stock of any agreementof its Subsidiaries or securities convertible into, contractor exercisable or exchangeable for, lease shares of Company Capital Stock or commitment shares of capital stock of any of its Subsidiaries, or any extension subscriptions, warrants, options, rights or modification securities to acquire any of the terms foregoing, except for issuances of any agreement, contract, lease Company Capital Stock upon the exercise of Company Options or commitment which (i) involves Company Warrants or the payment conversion of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment Company Preferred Stock or obligation the grant of options to any affiliate purchase Company Common Stock to employees of the Company other than under the Plan in the ordinary course of business as conducted on that date and consistent with past practicespractice since December 31, 2007;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) involves change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company since December 31, 2007;
(u) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Products (as defined below) since December 31, 2007;
(v) purchase or sale of, lease of or transfer of any interest in real property, granting of any material assetssecurity interest in any real property or lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries since the Balance Sheet Date;
(pw) hiring of, acquisition by the Company or offer any of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation its Subsidiaries or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or any of its Subsidiaries since December 31, 2007;
(x) grant by the Company or any of its Subsidiaries of any severance, change in control or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule since December 31, 2007;
(y) except as specifically permitted by the Agreement, adoption, amendment or termination of any Company Employee Plan, execution or amendment of any Employee Agreement, or payment or agreement by the Company or any of its Subsidiaries to pay any bonus or special remuneration to any director or Employee, or increase or modify the salaries, wage rates or other compensation (including any equity-based compensation) of any Employee since December 31, 2007;
(z) waiver of any stock repurchase rights, acceleration, amendment or change in the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including without limitation any long term incentive awards), or repricing of stock options (through amendment, exchange or otherwise) or authorization of cash payments or new equity awards in exchange for any stock options since December 31, 2007;
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries since December 31, 2007;
(bb) hiring, promotion, demotion or termination or other change to the employment status or title of any officer or hiring, promotion, demotion or termination or other change to the employment status or title of any other employees outside the ordinary course of business since the Balance Sheet Date;
(cc) alteration of any interest of the Company in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest since December 31, 2007;
(dd) cancellation, amendment or renewal of any insurance policy of the Company or any of its Subsidiaries since December 31, 2007; or
(ee) agreement by the Company or any of its Subsidiaries, or any officer or employees thereof on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pdd) of this Section 2.10 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement)Agreement and any Related Agreements) since the relevant date referenced in such clause.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Advent Software Inc /De/)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Organization or Bylaws Operating Agreement of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action of which Company has knowledge;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock Membership Interests, or any direct or indirect redemption, purchase or other acquisition by Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its Membership Interests;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, ;
(k) amendment or (iv) involves the sale of, lease of or transfer termination of any interest material contract, agreement or license to which Company is a party or by which it is bound;
(l) loan by Company to any person or entity, incurring by Company of any indebtedness, guaranteeing by Company of any indebtedness, issuance or sale of any debt securities of Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(m) waiver or release of any material assetsright or claim of Company, including any write-off or other compromise of any account receivable of Company in excess of $10,000 individually or in excess of $20,000 in the aggregate;
(n) commencement or notice or threat of commencement of any lawsuit or proceeding against or, to the knowledge of Company, any investigation of Company or its affairs;
(o) notice of any claim of ownership by a third party of Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by Company of any third party's Intellectual Property rights;
(p) hiring ofissuance or sale by Company of any of its Membership Interests, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its Membership Interests;
(q) change in pricing, royalties or reimbursement rates set or charged by Company to its customers or licensees or in pricing, royalties or reimbursement rates set or charged by persons who have licensed Intellectual Property to Company;
(r) event or condition of any employees (character that has or if an offer was accepted people that would become employees)is reasonably likely in Company's opinion to have a Material Adverse Effect on Company; or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Argonaut Technologies Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Company Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except material adverse change in the ordinary course of business as conducted on the date financial condition, liabilities, assets, business, or prospects of the Interim Balance Sheet and consistent with past practicesCompany;
(b) amendments or changes to in the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction ofdestruction, damage to to, or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) that constitutes a Material Adverse Effect on the PropertyCompany;
(e) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which the Company is aware, or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside aside, or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets shares of the Company, or any creation direct or indirect redemption, purchase or other acquisition by the Company of any security interest of its shares;
(i) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such assets or properties, including the Propertyperson;
(j) acquisition, sale or transfer of any material asset of the Company other than in the ordinary course of business;
(k) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectparty;
(kl) loan by the Company to any Personperson or entity, incurring or guaranty by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersloan;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company or its affairs, including the Project;
(no) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(op) issuance or sale by the Company of any agreement, contract, lease of its shares or commitment of any other of its securities except for issuances or any extension sales as a result of exercises of stock options granted under the Company Stock Option Plan or modification rights previously granted to purchase shares of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsCompany's capital stock;
(pq) hiring of, change in pricing or offer of employment to, any employees (royalties set or if an offer was accepted people that would become employees)charged by the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (q), other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this AgreementSince September 30, since 1999 and until the date of the Interim Balance Sheethereof, ---------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has or would be reasonably expected to have a Material Adverse Effect (as defined in Section 9.2 hereof) on the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(ik) acquisition, material sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) material loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) material waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice or threat of commencement sale by the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification other of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company its securities other than the grant or exercise of stock options in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(p) hiring of, change in pricing or offer of employment to, any employees royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Goto Com Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7 or with ---------- respect to agreements with Synbiotics, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) a. transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) b. amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) c. capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) d. destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not by covered by insurance), including the Property;
(e) change in accounting methods e. labor trouble or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) f. revaluation by the Company of any of its assets, including the Property;
(g) g. declaration, setting aside or of payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any Company Common Stock;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, h. sale, lease, license license-out or other disposition of any of the assets or properties of the Company, or any creation except sales of any security interest inventory in such assets or properties, including the Propertyordinary course of business;
(j) i. amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) j. loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) k. waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) ; l. commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
m. notice of any claim of ownership by a third party of Company Intellectual Property Rights (nas defined in Section 2.11 below) or notice of infringement by the Company of any third party's intellectual property rights;
n. issuance or sale by the Company of any of its shares of Company Common Stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
o. change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company;
p. event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) q. negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Synbiotics and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on Schedule 4.14, since the date of the Interim Balance Sheet, Sheet there has not been, occurred or arisen anyany of the following with respect to the Fat Grafting Operations:
(a) transaction by the Company except any change or any event, occurrence, development or fact that alone or in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesaggregate has resulted in, or would reasonably be expected to result in, a Material Adverse Event;
(b) amendments any amendment to Seller’s First Amended and Restated Limited Liability Company Agreement dated February 1, 2018, as amended by Seller’s First Amendment to First Amended and Restated Limited Liability Company Agreement dated December 31, 2021, or changes to the Articles any other organizational documents of Incorporation or Bylaws of the CompanySeller;
(c) expenditure any incurrence or commitment assumption by the Company Seller of any Indebtedness in excess of $10,000 5,000 individually or $50,000 25,000 in the aggregate;
(d) destruction of, damage to or loss the imposition of any material assets, business or customer Encumbrance (other than a Permitted Encumbrance) upon any of the Company Purchased Assets;
(e) any material damage, destruction or loss with respect to the Purchased Assets, whether or not covered by insurance), including the Property;
(ef) change in accounting methods any payment, loan or practices advance of any amount to, or sale, transfer or lease of any of Purchased Assets to, or any agreement or arrangement with, any member or equity holder of Seller or any of their respective Affiliates;
(including g) any change in the Tax or accounting principles, methods, practices or procedures followed by Seller or any change in the depreciation or amortization policies or rates) rates theretofore adopted by the Company;
(f) revaluation by the Company of any of its assetsSeller, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect except as disclosed to the capital stock of the CompanyBuyer in writing;
(h) material any change in or revocation by Seller of any compensation arrangement Tax election or any agreement or settlement with any employee, officer, director or stockholderGovernmental Body with respect to Taxes;
(i) acquisitionany acquisition by Seller by merging or consolidating with, sale, lease, license or other disposition of any by purchasing a substantial portion of the assets of the Companyof, or by any creation of other manner, any security interest in such assets business or propertiescorporation, including the Propertypartnership, association or other business organization or division thereof;
(j) amendment any sale, lease or termination other transfer or disposition by Seller of the Purchased Assets, tangible or intangible, other than for fair consideration in the ordinary course of business in a manner consistent with past practice;
(k) any contract (or series of related contracts) entered into by Seller either involving more than $25,000 individually (or $50,000 in the aggregate) or outside the ordinary course of business;
(l) any acceleration, termination, modification or cancellation of any material contract, agreement, permit, approval contract (or license series of related contracts) involving more than $25,000 individually (or $50,000 in the aggregate) to which the Company Seller is a party or by which it or its properties is bound, including any purchase and sale agreements for lots in the Project;
(km) loan any capital expenditure (or series of related capital expenditures) by Seller either involving more than $25,000 individually (or $50,000 in the Company to any Person, incurring by aggregate) or outside the Company ordinary course of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersbusiness;
(ln) any capital investment in, any loan to or any acquisition of the securities or assets of, any other Person;
(o) any delay or postponement of payment of accounts payable or other liabilities of Seller outside the ordinary course of business consistent with past practice;
(p) any cancellation, compromise, waiver or release of any right or claim of Seller outside the Company, including any write-off or other compromise ordinary course of any account receivable of the Companybusiness;
(mq) the commencement or notice or or, to Seller’s knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the ProjectSeller;
(nr) any event license or condition sublicense of any character that has rights of Seller under or could be reasonably expected with respect to have a material adverse impact on the CompanyIntellectual Property;
(os) any agreement, contract, lease or commitment or any extension or modification of the terms notice of any agreement, contract, lease claim of ownership by any Person of Intellectual Property or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer infringement by Seller of any interest in any material assetsPerson’s intellectual property rights;
(pt) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)material change in pricing charged by Seller for Fat Grafting Products; or
(qu) any negotiation or agreement by the Company Seller or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (pt) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in SCHEDULE 2.9, since July 31, 1999 and through the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practicespractices and except as contemplated by this Agreement;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital commitment by the Company in excess of $10,000 individually 25,000 in any individual case or $50,000 in the aggregateaggregate (other than commitments to pay expenses incurred in connection with this transaction);
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) work stoppage, labor strike or other labor trouble, or any material action, suit, claim, labor dispute or grievance relating to any labor, safety or discrimination matter involving the Company, including, without limitation, charges of wrongful discharge or other unlawful labor practices or actions;
(f) change in accounting methods methods, principals or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation in any material respect by the Company of any of its assets, including including, without limitation, writing down the Propertyvalue of capitalized inventory or writing off notes or accounts receivable;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to any Company Capital Stock, or any direct or indirect redemption, purchase or other acquisition by the capital stock Company of any Company Capital Stock, other than repurchases of Common Stock from directors, officers, employees, consultants or other persons performing services for the Company;
(h) material change in any compensation arrangement Company pursuant to agreements under which the Company has the option to repurchase such shares at cost upon the termination of employment or agreement with any employee, officer, director or stockholderother services;
(i) acquisitionsplit, combination or reclassification of any Company Capital Stock;
(j) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, including, but not limited to, the modification of any existing compensation or equity arrangements with such individuals (which modification may include the amendment of any vesting terms related to Company Options held by such individuals), or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except for in the ordinary course of the Company's business or as the Company is obligated as of the date hereof;
(k) granting of any increase in severance or termination pay or entry into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of the Merger;
(l) material agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets is bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets is bound;
(m) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any lien or security interest (except for those arising by operation of law and statute) in such assets or properties except in the ordinary course of business and consistent with past practices ("Liabilities"), or such liens or interests which do not materially impair the value or use of such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices or loans extended to employees in connection which exercises of Company Options under the Option Plan consistent with past practices;
(lo) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany (other than as required by GAAP);
(mp) commencement or or, to the knowledge of the Company notice or threat threat, of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(nq) except as set forth on SCHEDULE 2.3(b) or as contemplated by this Agreement, issuance or sale by the Company of any Company Capital Stock, or securities exchangeable, convertible or exercisable therefor, or any securities, warrants, options or rights to purchase any of the foregoing or any amendment of any existing equity arrangement, except for the issuance of Company Capital Stock upon exercise of Company Options or the Series C Warrant outstanding on July 31, 1999;
(r) event or condition of any character that has or could reasonably would be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives and other actions regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Informix Corp)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.8, since the date of the Interim Balance Sheet---------- ------------ Sheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practicespractices or otherwise not in excess of $5,000, in any individual case;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the CompanyCompany or any of its subsidiaries;
(c) capital expenditure or commitment by the Company or any of its subsidiaries in excess of $10,000 individually 15,000 in any individual case or in excess of $50,000 in the aggregate;.
(d) destruction of, damage to or loss of any material assets, business or customer of the Company or any of its subsidiaries (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its subsidiaries;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Propertyor any of its subsidiaries' assets (whether tangible or intangible);
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company Capital Stock, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock or any split, combination or reclassification in respect of the Company;
(h) material change any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in any compensation arrangement lieu of or agreement with any employee, officer, director or stockholderin substitution for shares of Company Capital Stock;
(i) acquisitionincrease in the salary or other compensation or benefits (including, but not limited to, options or other equity-based compensation awards) payable or to become payable by the Company or any of its subsidiaries to any of their officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation or benefits (including, but not limited to, options or other equity-based compensation awards) to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the CompanyCompany or any of its subsidiaries, or any the creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, ;
(k) amendment or (iv) involves the sale of, lease of or transfer termination of any interest material contract, agreement or license to which the Company or any of its subsidiaries is a party or by which it is bound;
(l) loan by the Company or any of its subsidiaries to any person or entity, incurring by the Company or any of its subsidiaries of any indebtedness, guaranteeing by the Company or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(m) waiver or release of any material assetsright or claim of the Company or any of its subsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its subsidiaries;
(n) commencement, settlement or notice or threat of commencement of any lawsuit or proceeding against or investigation of the Company or any subsidiary or their affairs or any reasonable basis for any of the foregoing;
(o) notice of any claim or potential claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.12 hereof) or of infringement by the Company or any of its subsidiaries of any third party's intellectual property rights;
(p) hiring ofissuance or sale, or offer contract to issue or sell, by the Company of employment toany shares of Company Capital Stock, or securities exchangeable, convertible or exercisable therefor, or of any employees other of its securities, other than pursuant to the exercise of options outstanding on the date hereof and granted under the Company Option Plan;
(q) change in pricing or if an offer was accepted people royalties set or charged by the Company or any of its subsidiaries to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company or any of its subsidiaries;
(r) event or condition of any character that would become employeeshas or could reasonably be expected to have a Company Material Adverse Effect (as defined in Section 9.2 hereof);
(s) changed material tax election, new material tax election inconsistent with past practices, new tax accounting method inconsistent with past practices or changed tax accounting method; closing agreement, settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(qt) negotiation or agreement by the Company or any of its subsidiaries or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Autodesk Inc)
No Changes. Except as contemplated by this Agreementset forth in SCHEDULE 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property) that has had or could reasonably be expected to have a Material Adverse Effect;
(e) significant labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including assets which individually or in the Propertyaggregate would be material;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholdercapital stock of the Company;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a bonus or other additional salary or compensation to any such person except in the ordinary course of business consistent with past practices or as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtednessindebtedness for borrowed money, guaranteeing by the Company of any indebtednessindebtedness of any other party, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for loans made and indebtedness incurred by the Company which do not exceed $10,000 individually or $25,000 in the aggregate in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany except in the ordinary course of business, consistent with past practices;
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company;
(q) event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netscape Communications Corp)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Lorilei's Financial Statements there has not been, occurred or arisen any:
(aA) transaction Transaction by the Company ▇▇▇▇▇▇▇ except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(bB) amendments Capital expenditure by ▇▇▇▇▇▇▇, either individually or changes to in the Articles of Incorporation or Bylaws of the Companyaggregate exceeding $5,000;
(cC) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofDestruction, damage to to, or loss of any material assets (including without limitation intangible assets, business or customer ) of the Company ▇▇▇▇▇▇▇ (whether or not covered by insurance), including either individually or in the Propertyaggregate, exceeding $5,000;
(eD) change Labor trouble or claim of wrongful discharge, sexual harassment or other unlawful labor practice or action;
(E) Change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals, or any change in capitalization of software development costs) by the Company▇▇▇▇▇▇▇;
(fF) revaluation by the Company of any of its assets, including the Property;
(g) declarationDeclaration, setting aside aside, or payment of a dividend or other distribution with in respect to the capital stock shares of the Company▇▇▇▇▇▇▇, or any direct or indirect redemption, purchase or other acquisition by ▇▇▇▇▇▇▇ of any of its shares;
(hG) material change Increase in the salary or other compensation payable or to become payable by ▇▇▇▇▇▇▇ to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment, by ▇▇▇▇▇▇▇, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(iH) acquisitionAcquisition, sale, lease, license sale or other disposition transfer of any asset of ▇▇▇▇▇▇▇ except in the assets ordinary course of the Company, or any creation of any security interest in such assets or properties, including the Propertybusiness;
(jI) Formation, amendment or termination of any distribution agreement or any material contract, agreement, permit, approval agreement or license to which the Company ▇▇▇▇▇▇▇ is a party or party, other than termination by which it is bound, including any purchase and sale agreements for lots in ▇▇▇▇▇▇▇ pursuant to the Projectterms thereof;
(kJ) loan Loan by the Company ▇▇▇▇▇▇▇ to any Personperson or entity, incurring or guaranty by the Company ▇▇▇▇▇▇▇ of any indebtedness, guaranteeing by loan except for expense advances in the Company ordinary course of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersbusiness consistent with past practice;
(lK) waiver Waiver or release of any material right or claim of the Company▇▇▇▇▇▇▇, including any write-off or other compromise of any material account receivable of the Company▇▇▇▇▇▇▇;
(mL) The notice or, to Lorilei's Knowledge, commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company ▇▇▇▇▇▇▇ or its affairs, including the Project;
(nM) any Other event or condition of any character that has or could would, in Lorilei's reasonable judgment, be reasonably expected to have a material adverse impact Material Adverse Effect on the Company▇▇▇▇▇▇▇;
(oN) any agreementIssuance, contract, lease sale or commitment or any extension or modification of the terms redemption by ▇▇▇▇▇▇▇ of any agreement, contract, lease of its shares or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate other of the Company its securities other than issuances of shares of common stock pursuant to outstanding Options and Warrants;
(O) Change in pricing or royalties set or charged by ▇▇▇▇▇▇▇ except for discounts extended in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetspractice;
(pP) hiring ofAny event that if occurring or undertaken during the interim between the execution of this Agreement and its Closing or earlier termination, or offer of employment to, any employees (or if an offer was accepted people that would become employees)have required disclosure to AmeriNet pursuant to Section 4.1; or
(qQ) negotiation Negotiation or agreement by the Company or any officer or employees thereof ▇▇▇▇▇▇▇ to do any of the things described in the preceding clauses (aA) through (pQ) (other than negotiations with Monaco or Buyer AmeriNet and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Organization or Bylaws operating Agreement of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ----------------- Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against investigation of the Company or its affairs;
(p) hiring of, notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or offer of employment to, infringement by the Company of any employees (or if an offer was accepted people that would become employees); orthird party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or may have a Material Adverse Effect on the Company or;
(t) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, ---------- occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company Agreement --------- which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat in writing of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring of, notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or offer notice of employment to, infringement by the Company of any employees (or if an offer was accepted people that would become employees); orthird party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or could reasonably be expected to have a Material Adverse Effect on the Company or;
(t) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheets there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants; 12PAGE
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheets and current liabilities incurred since the date of the Balance Sheets in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
Sources: Share Purchase Agreement (Thermo Bioanalysis Corp /De)
No Changes. Except as contemplated by this Agreementdisclosed on Schedule 3.6, since the date of the Interim Balance SheetDecember 31, ---------- 1999, there has not been, occurred or arisen any:
(a) transaction any change in the assets, liabilities, financial condition, or operating results of Acquiror from that reflected in the Acquiror Financials, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the Company business, properties, prospects, or financial condition of Acquiror (as such business is presently conducted and as it is presently proposed to be conducted);
(c) any waiver or compromise by Acquiror of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by Acquiror, except in the ordinary course of business and that is not material to the business, properties, prospects, or financial condition of Acquiror (as such business is presently conducted on the date of the Interim Balance Sheet and consistent with past practicesas it is presently proposed to be conducted);
(be) amendments the entering into or changes change in the terms of any material contract or arrangement by which Acquiror or any of its assets or properties is bound or to the Articles which Acquiror or any of Incorporation such assets or Bylaws of the Companyproperties is subject;
(cf) expenditure any change to a material contract or commitment arrangement by the Company in excess which Acquiror or any of $10,000 individually its assets is bound or $50,000 in the aggregatesubject;
(dg) destruction ofany material change in any compensation arrangement or agreement with any employee, damage to officer, director or loss shareholder;
(h) any sale, assignment, or transfer of any material assets, business or customer of the Company (whether or not covered by insurance), including the Acquiror's Intellectual Property;
(ei) any resignation or termination of employment of any key officer of Acquiror; and Acquiror, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer;
(j) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(k) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyAcquiror;
(fl) revaluation by the Company Acquiror of any of its material assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lm) waiver or release of any right or claim of the CompanyAcquiror, including any write-off or other compromise of any account receivable of Acquiror except in the Companyordinary course of business;
(mn) to Acquiror's knowledge, commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company Acquiror or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of Acquiror's Intellectual Property or of infringement by Acquiror of any third party's Intellectual Property rights;
(p) issuance or sale by Acquiror of any of its shares of capital stock since December 31, 1999;
(q) issuance or sale by Acquiror of any securities exchangeable, convertible or exercisable for Acquiror Common Stock, or of any other of its securities;
(r) change in pricing or royalties set or charged by Acquiror to its customers or licensees except in the ordinary course of business or in pricing or royalties set or charged by persons who have licensed Intellectual Property to Acquiror;
(s) receipt of notice that there has been a loss of, or material order cancellation by, any customer of Acquiror;
(t) any mortgage, pledge, transfer of a security interest in, or lien, created by Acquiror, with respect to any of its material properties or assets, except liens for taxes not yet due or payable;
(u) any loans or guarantees made by Acquiror to or for the benefit of its employees, shareholders, officers, or directors, or any members of their the ordinary course of its business;
(v) any declaration, setting aside, or payment of any dividend or other distribution of Acquiror's assets in respect of any of Acquiror's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by Acquiror;
(w) amendments or changes to the Certificate of Incorporation or Bylaws of Acquiror;
(x) any capital expenditure in excess of $100,000
(y) to the best of Acquiror's knowledge, any other event or condition of any character that has or could be reasonably expected to have a material adverse impact on might materially and adversely affect the Company;
(o) any agreementbusiness, contractproperties, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesprospects, or financial condition of Acquiror (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesas such business is presently conducted and as it is presently proposed to be conducted); or
(qz) negotiation any agreement or agreement commitment by the Company Acquiror or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Section 3.6.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Context Integration Inc)
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.7, since the date of the Interim Reference Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Reference Balance Sheet and consistent with past practicespractice;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 5,000 individually or $50,000 20,000 in the aggregate;
(d) destruction of, material damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has had or would be reasonably expected to have a Material Adverse Effect on the Company;
(g) change in accounting methods or practices (including any change in depreciation depreciation, amortization or amortization revenue recognition policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation (including any equity-based compensation, bonus or payment) payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except in the ordinary course of business consistent with past practice or agreement with any employee, officer, director or stockholderas otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practice;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval Contract described in Schedule 2.12(a) or license Schedule 2.11(n) to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice;
(ln) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice or threat of commencement sale by the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of any other of its securities except for the grant of Company or its affairs, including Options as set forth on Schedule 2.2(b) and the Projectissuance of Company Common Stock upon the exercise of Company Options;
(np) any event change in the pricing or condition of any character that has royalties set or could be reasonably expected charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have a material adverse impact on the Company;
licensed Intellectual Property (oas defined in Section 2.11) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetspractice;
(pq) hiring oftermination, voluntary or offer involuntary, of employment to, any employees key employees;
(r) reduction in projected purchase requirements by any material Company customer or if an offer was accepted people that would become employees)any notice of intent to reduce such purchases by any such customer; or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not beenexcept as disclosed in Section 2.6 of the Disclosure Schedule or as consented to by Parent in accordance with Section 4.2, occurred or arisen anyneither the Company nor any of the Subsidiaries has:
(a) transaction by undergone any material change in its financial condition or operations other than changes that were in the ordinary course of the Business;
(b) (i) declared or paid any dividends on or made other distributions in respect of any equity interest of the Company or any of the Subsidiaries or set aside funds therefor; (ii) split, combined or reclassified any equity interest of the Company or any of the Subsidiaries or issued, authorized or proposed the issuance of any other securities in respect of, in lieu of or in substitution for, any equity interest of the Company or any of the Subsidiaries; or (iii) repurchased or otherwise acquired any equity interest of the Company or any of the Subsidiaries;
(c) issued any equity interest of the Company or any of the Subsidiaries or any other security, instruments, rights or interests in the Company or any of the Subsidiaries or any subscription, option, warrant, commitment or right of any kind whatsoever with respect to any equity interest of the Company or any of the Subsidiaries or any other security, instrument, rights or interest in the Company or any of the Subsidiaries;
(d) amended or proposed to amend the Company’s Certificate of Incorporation, the UK Subsidiary’s Memorandum and Articles of Association or the Australian Subsidiary’s Constitution;
(e) merged or consolidated with or acquired any equity interest in any Person, or entered into an agreement with respect thereto; acquired or agreed to acquire any assets, except in the ordinary course of business as conducted on the date Business; or made any loan or advance to, or otherwise made any investment in, any Person other than trade debt incurred in the ordinary course of the Interim Balance Sheet and Business consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Companypractice;
(f) revaluation by the Company of sold, encumbered or otherwise disposed of, or agreed to sell, lease (whether such lease is an operating or capital lease), encumber, assign or otherwise dispose of, any of its assetsassets (including any equity interest of the Company or any of the Subsidiaries, including other securities of the PropertyCompany or any of the Subsidiaries or Intellectual Property Rights of the Company or any of the Subsidiaries), except in the ordinary course of business;
(g) declarationauthorized, setting aside recommended, proposed or payment announced an intention to adopt a plan of a dividend complete or other distribution with respect to the capital stock of the Companypartial liquidation or dissolution;
(h) made any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;other than as reflected in compensation data made available to Parent prior to the date hereof; AGREEMENT AND PLAN OF MERGER
(i) acquisitionexcept as required by law or any Company Employment Agreement (as defined herein) (i) paid or agreed to pay any pension, sale, lease, license retirement allowance or other disposition employee benefit to any director, officer, management employee or key employee of the Company or any of the assets Subsidiaries, whether past or present; (ii) entered into any new, or materially amended any existing, employment or severance or termination agreement with any Person; (iii) became obligated under any new benefit plan or employee agreement that was not in existence on the date of the CompanyBalance Sheet or amended any such plan or agreement in existence on such date if such amendment would have the effect of materially enhancing any benefits thereunder; (iv) granted any general increase in compensation (including salary, bonus or other benefits) to employees of the Company or any creation of the Subsidiaries; or (v) extended any security interest in such assets loans or propertiesadvances to any of its directors, including officers, management employees or key employees of the PropertyCompany or any of the Subsidiaries, except advances to employees for expenses consistent with past practices;
(j) amendment (i) assumed or termination incurred any indebtedness for borrowed money; (ii) guaranteed any such indebtedness; (iii) issued or sold any debt securities or warrants or rights to acquire any debt securities; (iv) guaranteed any debt obligations of any material contractother Person; or (v) created any lien, agreementpledge, permithypothecation, approval charge, mortgage, deed of trust, security interest, encumbrance, claim, option, right of first refusal, preemptive right, community property interest, or license to which the Company is a party or by which it is bound, including similar restriction on any purchase and sale agreements for lots in the Projectasset (an “Encumbrance”);
(k) loan by except in the Company to ordinary course of the Business consistent with past practice, (i) entered into any PersonContract; or (ii) modified, incurring by rescinded, terminated, waived, released or otherwise amended in any material respect any of the Company terms or provisions of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersContract;
(l) waiver except as required to be consistent with the manner in which the Company has historically prepared its financial statements or release by applicable law, (i) permitted any material change in (1) any practice or policy regarding pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Taxes for accounting, financial or tax purposes, or (2) any method of calculating any right or claim of the Companybad debt, including any write-off contingency or other compromise of reserve for accounting, financial reporting or tax purposes; or (ii) made any account receivable of the Companymaterial Tax election or settled or compromised any material Tax liability with any Governmental Authority;
(m) commencement delayed payment on or notice failed to pay when due the trade accounts payable or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation other recurring expenses of the Company or its affairsany of the Subsidiaries, including except as a result of a good faith disagreement with respect thereto, and, any such payable or expense in excess of $25,000 is set forth on Section 2.6(m) of the ProjectDisclosure Schedule;
(n) incurred any event or condition capital expenditures in excess of any character that has or could be reasonably expected to have a material adverse impact on the Company$5,000 individually;
(o) paid, discharged or settled any agreementclaims, contract, lease liabilities or commitment or any extension or modification obligations in excess of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annumindividually, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business business;
(p) settled, released or forgiven any material claim or litigation or waived any right thereto;
(q) except as conducted on that date and consistent with past practices, filed any Tax Return (as defined below) or entered into any agreement with any Governmental Authority directly relating to Taxes or Tax Returns; AGREEMENT AND PLAN OF MERGER (ivr) involves the sale of, lease of waived or transfer agreed to any extension of any interest limitations period in any material assetsrespect of Taxes;
(ps) hiring of, made any change in the lines of business in which the Company or offer any of employment to, any employees (the Subsidiaries participates or if an offer was accepted people that would become employees)is engaged; or
(qt) negotiation or agreement by the Company or entered into any officer or employees thereof commitment to do take any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated actions prohibited by this Agreement)Section 2.6.
Appears in 1 contract
Sources: Merger Agreement (Netsuite Inc)
No Changes. Except as contemplated by Since the Balance Sheet Date through the date of this Agreement, since other than this Agreement and the date of the Interim Balance Sheettransactions contemplated hereby, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and business, consistent with past practicespractices and other than the transactions contemplated by this Agreement and the Related Agreements;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure agreement, purchase order or commitment by the Company requiring future payments during any calendar year in excess of $10,000 50,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction of any Liabilities, other than (i) payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, (ii) of Liabilities reflected or reserved against in the Current Balance Sheet, (iii) arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date or (iv) any Liabilities in the aggregate less than $100,000;
(e) destruction of, damage to to, or loss of any material assets, assets (whether tangible or intangible) or material business or customer of the Company (whether or not covered by insurance), including the Property;
(ef) loss of any customer that represented one of the twenty (20) largest sources of revenue for the Company for any fiscal year after March 1, 2009;
(g) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fi) adoption of or change in any material Tax election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(j) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory, other than in the ordinary course of business consistent with past practice;
(gk) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(l) hiring or termination of any employee or consultant whose annual compensation or consulting fees exceeded $100,000 of the Company;
(hm) material change increase in the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its respective officers, directors, employees whose annual compensation arrangement exceeded $100,000, consultants or agreement with advisors, or the declaration, adoption, agreement, contract, payment or commitment or obligation of any employeekind for the payment (whether in cash or equity) by the Company of a severance payment, officertermination payment, director bonus or stockholderother additional salary or compensation to any such Person;
(in) acquisitionagreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into, terminated, extended, amended or modified in the ordinary course of business, consistent with past practice;
(o) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the CompanyCompany outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any Accounts Receivable, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kp) loan by the Company to any Person, incurring or purchase by the Company of any debt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(q) incurrence by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lr) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable Accounts Receivable, other than in the ordinary course of business consistent with past practice;
(s) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company, its affairs, or, to the Knowledge of the Company, any reasonable basis for any of the foregoing;
(t) claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(mu) commencement or notice or threat of commencement of any lawsuit claim or judicial potential claim of ownership, interest or administrative proceeding against or investigation right by any Person other than the Company of the Company Intellectual Property (as defined in Section 2.14 hereof) or its affairs, including of infringement by the ProjectCompany of any other Person’s Intellectual Property Rights (as defined in Section 2.14 hereof);
(nv) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plans;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practices, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any Person or with respect to the Intellectual Property Rights of any Person, (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third party, or (iv) material adverse change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights to the Company;
(x) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any product, service or technology of the Company, other than in the ordinary course of business;
(y) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(oz) any agreementlease, contractlicense, lease sublease or commitment or any extension or modification of the terms other occupancy of any agreement, contract, lease or commitment which Leased Real Property (ias defined in Section 2.13 hereof) involves by the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Company; or
(qaa) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pz) of this Section 2.10 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Nuance Communications, Inc.)
No Changes. Except as contemplated by this Agreement, since From the Balance Sheet Date through the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $250,000 in the aggregate;
(c) payment, discharge or satisfaction, in any amount in excess of $10,000 individually 50,000 in any one case, or $50,000 100,000 in the aggregate, of any Liabilities, other than payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, of Liabilities reflected or reserved against in the Current Balance Sheet;
(d) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(f) adoption of or change in any material Tax (as defined below) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(g) material revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Property;
(g) declaration, setting aside value of inventory or payment of a dividend writing off notes or other distribution with respect to the capital stock of the Companyaccounts receivable;
(h) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, Employees or advisors, which increase (individually or in the aggregate) is material change to the Company, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any compensation arrangement or agreement with any employee, officer, director or stockholdersuch person;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any material indebtedness, issuance or sale of any debt securities, purchase of a material amount of debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lj) waiver or release of any right rights or claim claims of the Company, including any write-off offs or other compromise of any account receivable of the Company, with a value in excess of $25,000 individually or $50,000 in the aggregate;
(mk) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company (other than on the part of Parent or investigation any of its affiliates, as to which this representation is not made);
(l) receipt by the Company of written notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in SECTION 2.14 hereof) or of infringement by the Company of any other person's Intellectual Property (as defined in SECTION 2.14 hereof);
(i) except standard end user licenses/hosting agreements entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or with respect to the Intellectual Property of any person, or (ii) except in the ordinary course of business, consistent with past practice, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its affairs, including customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the ProjectCompany;
(n) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the Company;Company Material Adverse Effect; or
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pm) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).of this
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing, royalties or reimbursement rates set or charged by the Company to its customers or licensees or in pricing, royalties or reimbursement rates set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Neurocrine Biosciences Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Current Balance Sheet, there has not been, occurred or arisen any:
(a) commitment or transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments amendment or changes change to the Articles of Incorporation Incorporation, Bylaws or Bylaws other organizational documents, as the case may be, of the CompanyCompany or any of its Subsidiaries;
(c) expenditure change in the Company’s or commitment any of its Subsidiaries authorized capital structure;
(d) capital expenditures, lease commitments or capital commitments by the Company or any of its Subsidiaries, either individually exceeding $100,000 or in the aggregate exceeding $200,000;
(e) payment, discharge or satisfaction by the Company or any of its Subsidiaries, in any amount in excess of $10,000 individually 100,000 in any one case or $50,000 200,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction (i) of any Borrowed Money Indebtedness, or (ii) in the ordinary course of business of other liabilities reflected or reserved against in the Current Balance Sheet, or arising thereafter in the ordinary course of business;
(df) destruction of, damage to or loss of any material assets, business or customer of the Company Assets (whether or not covered by insurance), including in excess of $200,000 in the Propertyaggregate;
(eg) revaluation by the Company or any of its Subsidiaries of any of their respective Assets;
(h) change, event or effect that has had a Material Adverse Effect on the Company or any of its Subsidiaries;
(i) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries, including, but not limited to, any change made in accordance with GAAP;
(fj) revaluation by the Company change in any election material with respect to Taxes, adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of its assetsTaxes, including extension or waiver of the Propertylimitation period applicable to any material claim or assessment in respect of Taxes, or material amendment or change of any Return;
(gk) declaration, setting aside or payment of a dividend or other distribution with respect to the shares in the capital stock of the Company, or any split, combination or reclassification in respect of any shares in the capital of the Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares in the capital of the Company, or any direct or indirect redemption, repurchase or other acquisition by the Company of any shares in the capital of the Company (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the Company Share Option Plan;
(hl) material increase in the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its officers, directors or employees (other than increases in the ordinary course of business for employees who are not executive officers) or the declaration, payment or commitment or obligation of any kind for the payment, by the Company or any of its Subsidiaries, of a severance payment, termination payment, change in control payment, bonus or other additional salary or compensation to any compensation arrangement or agreement with any employee, officer, director or stockholdersuch Person except as otherwise contemplated by this Agreement;
(im) acquisitiontermination by the Company (other than expiration in accordance with its terms), extension by the Company (other than renewal in accordance with its terms), material amendment or material modification of the terms of any Contract set forth on the Disclosure Schedules other than in the ordinary course of business consistent with past practices;
(n) sale, lease, assignment, license or other disposition of any of the assets Assets of the Company, Company or any creation of any security interest its Subsidiaries other than in such assets or properties, including the Propertyordinary course of business consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company or any of its Subsidiaries to or capital investment in any Person, incurring by the Company or any of its Subsidiaries of any indebtednessindebtedness for borrowed money, guaranteeing by the Company or any of its Subsidiaries of any indebtednessindebtedness for borrowed money of others, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others;
(lp) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mq) commencement or notice or threat of commencement settlement of any lawsuit by the Company or judicial any of its Subsidiaries;
(r) issuance or administrative proceeding against sale, or investigation contract or agreement to issue or sell, by the Company or any of its Subsidiaries of any of shares in the capital of the Company or securities exchangeable, convertible or exercisable therefor, or of any other of its affairssecurities, including except for, in the Projectcase of the Company, issuances or sales of shares in the capital of Company upon the exercise of Company Share Options or Company Warrants outstanding as of the date of this Agreement;
(ns) transfer or license to or from any event Person any Intellectual Property Rights (including any Company Intellectual Property) or condition entry into or amendment of any character that has or could be reasonably expected to have a material adverse impact on the Company;
agreement with any Person regarding any Intellectual Property Rights (o) including any agreementCompany Intellectual Property), contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practicespractice or (ii) agreement with respect to the development of any Intellectual Property with a third party or amendment of any such agreement except in the ordinary course of business consistent with past practice, or (iviii) involves change in pricing or royalties set or charged by the sale of, lease Company or any of its Subsidiaries to its customers or transfer licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property or Intellectual Property Rights to the Company or any of any interest in any material assetsits Subsidiaries;
(pt) hiring ofagreement or modification to any material agreement pursuant to which any other party was granted marketing, distribution, development or offer similar rights of employment toany type or scope with respect to any products or services of the Company or any of its Subsidiaries or Company Intellectual Property;
(u) failure to pay or otherwise satisfy its monetary obligations as they become due, any employees (or if an offer was accepted people that would become employees)except such as are being contested in good faith; or
(qv) negotiation or agreement by the Company or any of its Subsidiaries or any officer or employees thereof employee on behalf of the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreementu).
Appears in 1 contract
Sources: Transaction Agreement (Avocent Corp)
No Changes. Except as contemplated by this Agreementset forth on Schedule 3.9, since the date of the Interim Balance SheetSeptember 30, 2002, there has not been, occurred or arisen been any:
(a) transaction transactions by the Company Acquired Entity except in the ordinary course of business conducted as conducted on of that date;
(b) material adverse change in the date financial condition, liabilities, assets or results of operation of the Interim Balance Sheet and business of the Acquired Entity;
(c) indebtedness or liability, whether accrued, absolute, contingent or otherwise incurred by the Acquired Entity except in the ordinary course of business;
(d) default under any indebtedness of the Acquired Entity, or any event which with the lapse of time or the giving of notice, or both, would constitute such a default, other than defaults that will be cured or waived by the Closing Date, which defaults will be disclosed to Schwarzkopf on an amended Schedule 3.9 to be provided at the Closing;
(e) amendment or termination of any Material Contract, lease or license to which the Acquired Entity is a party, other than notices of termination that will be rescinded by the Closing Date;
(f) material increase in compensation paid, payable or to become payable by the Acquired Entity to any of its employees;
(g) extraordinary losses (whether or not covered by insurance) or waiver by the Acquired Entity of any rights of extraordinary value;
(h) commitment to or liability to any labor organization;
(i) lowering of the prices charged by the Acquired Entity for goods or services in a manner not consistent with past practices;
(bj) amendments or changes notice from any customer as to the Articles customer's intention not to conduct business with the Acquired Entity, the result of Incorporation which loss or Bylaws losses of business, individually or in the Companyaggregate, has had, or could reasonably be expected to have, a material adverse effect on the business;
(ck) expenditure change in the Acquired Entity's authorized or commitment issued capital stock; grant of any stock option or right to purchase shares of capital stock of the Acquired Entity; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company Acquired Entity of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in excess respect of $10,000 individually or $50,000 in the aggregateshares of capital stock;
(dl) destruction amendment to the Organizational Documents of the Acquired Entity;
(m) payment or increase by the Acquired Entity of any bonuses, salaries, or other compensation to any stockholder, director, officer, or (except in the ordinary course of business) employee or entry into any employment, severance, or similar Contract with any director, officer, or employee;
(n) adoption of, damage or increase in the payments to or loss of benefits under, any material assetsprofit sharing, business bonus, deferred compensation, savings, insurance, pension, retirement, or customer other employee benefit plan for or with any employees of the Company Acquired Entity;
(o) damage to, or destruction or loss of, any asset or property of the Acquired Entity, whether or not covered by insurance, materially and adversely affecting the properties, assets, business, or financial condition of the Acquired Entity, taken as a whole;
(p) sale (other than sales of inventory in the ordinary course of business), lease, or other disposition of any asset or property of the Acquired Entity or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of the Acquired Entity, including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the PropertyIntellectual Property Assets;
(jq) amendment cancellation or termination waiver of any material contractclaims or rights with a value to the Acquired Entity in excess of $10,000.00 per individual claim or right, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in excess of $100,000.00 in the Projectaggregate;
(kr) loan change in the accounting methods used by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersAcquired Entity;
(ls) waiver agreement, whether oral or release of written, by the Acquired Entity to do any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;foregoing; or
(mt) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any other event or condition of any character character, other than those matters generally known to the public, that has or could be might reasonably expected to have a material adverse impact effect on the Company;
(o) any agreementAcquired Entity's or the business' Assets, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesfinancial condition, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Semx Corp)
No Changes. Except as contemplated by this Agreement, since Between the date of the Interim Current Balance SheetSheet and the date of this Agreement, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairsSubsidiaries, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) amendments or changes to the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, except as expressly contemplated by this Agreement;
(c) capital expenditure or commitment by the Company or its Subsidiaries exceeding $5,000 individually or $25,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $25,000 in the aggregate, of any claim, liability or obligation (whether fixed or accrued, absolute or contingent, matured or unmatured, determined or determinable or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected on or reserved against in the Current Balance Sheet and current liabilities incurred since the Current Balance Sheet;
(e) change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, or depreciation or amortization policies or rates) by the Company or its Subsidiaries other than as required by GAAP;
(f) change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(g) revaluation by the Company or its Subsidiaries of any of its assets (whether tangible or intangible);
(h) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or the issuance of Unvested Company Common Stock;
(i) material increase in the salary or other compensation payable or to become payable by the Company or its Subsidiaries to any of their officers, directors or Employees or the declaration, payment or commitment or obligation of any kind for the payment by the Company or its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person (except pursuant to the Company’s pre-existing bonus plans and amounts earned thereunder as previously disclosed to Parent);
(j) any termination or extension, or any amendment, waiver or modification of the terms, of any Contract required to be disclosed in Section 3.14 of the Company Disclosure Schedule (other than terminations in connection with the scheduled end of the term of such Contract);
(k) except in the ordinary course of business consistent with past practices, sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or its Subsidiaries, including the sale of any accounts receivable of the Company or its Subsidiaries, or any creation of any Lien (other than Permitted Liens) in such assets or properties;
(l) loan by the Company or its Subsidiaries to any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), incurring by the Company or its Subsidiaries of any indebtedness for money borrowed, guaranteeing by the Company or its Subsidiaries of any indebtedness for money borrowed, issuance or sale of any debt securities of the Company or its Subsidiaries or guaranteeing of any debt securities of others, except for trade payables and advances to employees for travel and business expenses, in each case in the ordinary course of business consistent with past practices;
(m) waiver or release of any material right or claim, including any write-off, discount or other compromise of any account receivable of the Company or its Subsidiaries, other than write-offs of accounts receivable in the ordinary course of business consistent with past practices;
(n) the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiaries;
(o) notice of any claim or potential claim of ownership by any Person other than the Company or its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiaries or of infringement by the Company or its Subsidiaries of any other Person’s Intellectual Property Rights;
(p) (i) sale or license of any Company Intellectual Property or execution of any agreement with respect to the Company Intellectual Property with any Person, other than in the ordinary course of business, or (ii) purchase or license of any Intellectual Property Rights or execution of any agreement with respect to the Intellectual Property Rights of any Person (other than the Company), other than ordinary course shrink wrap software agreements for internal operations, (iii) agreement with respect to the development of any Intellectual Property Rights with a third party, or (iv) involves change in pricing or royalties set or charged by the sale of, lease of Company to its customers or transfer of any interest licensees or in any material assetspricing or royalties set or charged by persons who have licensed Intellectual Property Rights to the Company;
(pq) hiring ofcircumstance, change, event or offer effect of employment to, any employees (character that is or if an offer was accepted people that would become employees)is reasonably likely to be material and adversely affect the Company; or
(qr) negotiation written or oral agreement by the Company or its Subsidiaries, or any officer or employees thereof employee on behalf of the Company or its Subsidiaries, to do any of the things described in the preceding clauses (a) through (p) q), inclusive, of this Section 3.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on SCHEDULE 4.12, since the date of the Interim Balance SheetDecember 31, 2003 there has not been, occurred or arisen been any:
(a) transaction by specifically relating to the Company Station or the Broadcasting Assets except in the ordinary course of business conducted as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments material adverse change in the financial condition, liabilities, assets or changes to the Articles results of Incorporation or Bylaws operation of the Station, and to Company's and Seller's Knowledge there is no fact, event or circumstance that is reasonably likely to result in a material adverse change in the financial condition, liabilities, assets or results of operation of the Station;
(c) expenditure any default under any indebtedness of Seller, Company or commitment by any Subsidiary, or any event which, with the Company in excess lapse of $10,000 individually time, giving of notice or $50,000 in the aggregateboth, could constitute such a default;
(d) destruction of, damage to amendment or loss termination of any material assetsContract, Lease or License to which the Company and/or the Subsidiaries are a party, except in the ordinary course of business;
(e) increase in compensation paid, payable or to become payable by the Company and/or the Subsidiaries to any of their employees except normal increases in wages or salaries not in excess of 5% per annum in the usual and ordinary course of business or customer of the Station;
(f) increase in severance or other benefits or entitlements of any employees of Company and/or the Subsidiaries;
(g) extraordinary losses (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation waiver by the Company and/or the Subsidiaries of any extraordinary rights of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Companyvalue;
(h) commitment to or material change in to any compensation arrangement or collective bargaining agreement with any employeelabor organization which represents, officeror proposes to represent, director or stockholderthe Station Employees;
(i) acquisition, sale, lease, license or other disposition of any lowering of the assets advertising rates of the Company, Station in a manner not consistent with past practices or any creation reflective of any security interest in such assets or properties, including the Propertycurrent market conditions;
(j) amendment notice from any sponsor or termination customer as to that sponsor's or customer's intention not to conduct business with the Station, the result of any material contractwhich loss or losses of business, agreement, permit, approval individually or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectaggregate, has had, or could reasonably be expected to have, a Material Adverse Effect;
(k) loan by write down of the Company to any Person, incurring by the Company value of any indebtednessassets except in the ordinary course of business, guaranteeing by none of which, individually or in the Company of any indebtednessaggregate, issuance has or sale of any debt securities of might reasonably have a Material Adverse Effect on the Company or guaranteeing by the Company of any debt securities of othersSubsidiary's financial condition;
(l) waiver change in Seller's, Company's or release any Subsidiary's method of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Companyaccounting;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any other event or condition of any character that has or could be might reasonably expected to have a material adverse impact on Material Adverse Effect;
(n) sale, assignment, lease or other transfer or disposition of any of the Companyassets or properties of the Station except in the ordinary course of business;
(o) any agreementdistribution, contracttransfer, lease sale, exchange, loan or commitment disposition to a related or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;affiliated Person; or
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by Seller, Company and/or the Company or any officer or employees thereof Subsidiaries to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Granite Broadcasting Corp)
No Changes. Except as contemplated by this AgreementAgreement or as set forth in Section 2.11 of the Disclosure Schedule, since from the Balance Sheet Date through the date of hereof, the Interim Balance Sheet, Company has operated its business only in the Ordinary Course and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesOrdinary Course;
(b) amendments amendment or changes change to the Articles of Incorporation Charter Documents or Bylaws of the CompanySubsidiary Charter Documents;
(c) expenditure or commitment by amendment of any term of any outstanding security of the Company, other than amendments of vesting periods of the Accelerated Company Vested Options in excess contemplation of $10,000 individually or $50,000 in this Agreement and the aggregatetransactions contemplated hereby;
(d) expenditure or transaction with a monetary commitment by the Company exceeding $20,000 individually or $60,000 in the aggregate with respect to any single Person;
(e) settlement, discharge, waiver, release or satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company) exceeding $50,000 individually or $200,000 in the aggregate with respect to any single Person, other than any such settlement, discharge, waiver, release or satisfaction entered into in the Ordinary Course on terms that were consistent in all material respects with previously existing Contract provisions;
(f) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer intangible) of the Company Company, resulting in a loss of more than $50,000 (whether or not covered by insurance), including the Property;
(eg) material employment dispute, including claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(i) change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes by the Company;
(fj) revaluation by the Company of any of its assetsasset (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off a note or an accounts receivable, in an amount exceeding $50,000;
(gk) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hl) material change increase in the salary or other compensation payable or to become payable by the Company to any compensation arrangement or agreement with any employee, officer, director or stockholderemployee, or the declaration, payment, commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment or bonus to any such officer, director or employee;
(im) acquisitionentry into (or termination, extension, material amendment or material modification of the terms of) any Contract to which the Company is a party or by which they or any of its assets (whether tangible or intangible) are bound, other than Contracts entered into in the Ordinary Course;
(n) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including other than any such disposition made in the PropertyOrdinary Course or involving receipt of less than $50,000;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company to any Person, purchase by the Company of any debt securities of any Person, or capital contributions to investment in any Person;
(p) creation or other incurrence by the Company of any Lien (other than a Permitted Lien) on any of their assets;
(q) incurring by the Company of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any such indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lr) waiver commencement or release settlement of any right lawsuit by the Company, or claim commencement, settlement, written notice or, to the Knowledge of the Company, including threat of any write-off lawsuit or proceeding or other compromise investigation against the Company or its affairs;
(s) notice of any account receivable claim or potential claim of ownership, interest or right by any Person other than the Company in or to the Intellectual Property owned by the Company or of infringement by the Company of any other Person’s Intellectual Property;
(t) issuance, grant, delivery or sale by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, other than shares of Company Common Stock issued upon exercise of options outstanding as of the Balance Sheet Date;
(i) sale or license of any Intellectual Property owned by the Company or execution of any Contract with respect to Intellectual Property owned or exclusively licensed by the Company with any Person, other than any such sale or license entered into in the Ordinary Course, (ii) purchase or license of any Intellectual Property or execution of any Contract with respect to the Intellectual Property of any Person, other than in connection with a purchase or license of “off-the-shelf” software, (iii) Contract with respect to the development of any Intellectual Property with a third party, (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees, or (v) material change in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company;
(mv) commencement Contract or notice modification to any Contract pursuant to which any other party was granted marketing, distribution, development, manufacturing or threat of commencement similar rights of any lawsuit type or judicial scope with respect to any Company Products or administrative proceeding against or investigation any Intellectual Property of the Company or its affairsCompany, including in each case other than in the ProjectOrdinary Course;
(nw) any event event, occurrence, development, state of circumstances, facts, or condition of any character that has had or could would reasonably be reasonably expected to have have, individually or in the aggregate, a material adverse impact on Material Adverse Effect with respect to the Company;
(ox) any agreementContract to purchase or sell any interest in real property, contractgrant any Lien on any real property, lease enter into any lease, sublease, license or commitment other occupancy agreement with respect to any real property or alter, amend, modify or terminate any extension or modification of the terms of any agreementLease Agreement;
(y) acquisition of or Contract to acquire by merging or consolidating with, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment by purchasing all or obligation to any affiliate substantially all of the Company assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition of or Contract to acquire, other than in the ordinary course Ordinary Course, assets or equity securities that are or would be material, individually or in the aggregate, to the business of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsCompany;
(pz) hiring ofcancellation, amendment or offer renewal of employment to, any employees (or if an offer was accepted people that would become employees)insurance policy; orand
(qaa) negotiation or agreement by the Company Company, or any officer or employees thereof employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pz) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.11.
Appears in 1 contract
Sources: Merger Agreement (Compuware Corp)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) Material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction of, material damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except in the ordinary course of business or agreement with any employee, officer, director or stockholderas otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practices;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound other than in the Projectordinary course of business;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any material indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat , except in the ordinary course of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Companybusiness;
(o) any agreement, contract, lease issuance or commitment or any extension or modification of sale by the terms Company of any agreementof its shares of capital stock, contractor securities exchangeable, lease convertible or commitment which exercisable therefor, or of any other of its securities except for the issuance of Company Common Stock upon the exercise of stock options;
(ip) involves change in pricing or royalties set or charged by the payment of greater than $25,000 per annum, Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (iias defined in Section 2.11) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)business; or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except Since the Balance Sheet Date, except as contemplated by this Agreement, since the date set forth in ---------- Section 2.9 of the Interim Balance SheetCompany Disclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments capital expenditure or changes to the Articles of Incorporation or Bylaws of commitment for capital expenditure by the Company, either individually or in the aggregate, exceeding $10,000;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) or loss of any business or customers of the PropertyCompany that (i) accounted for $50,000 or more of the Company's revenues for fiscal year 1998 or (ii) is projected to account for $100,000 or more of the Company's projected revenue for fiscal year 1999;
(d) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which Shareholder is aware or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including other than depreciation as required by GAAP and reflected on the PropertyClosing Balance Sheet;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of any Company Shares or profits, or any split, combination or reclassification of Company Shares or the issuance or authorization of the issuance of any of the securities in respect of, in lieu of or in substitution for any share in the stated capital stock of the Company, or the repurchase, redemption or other acquisition, directly or indirectly, of any Company Shares (or options, warrants or other rights exercisable therefor);
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company of a bonus or other additional salary or compensation arrangement or agreement with to any employeesuch person, officer, director or stockholderexcept as made in the ordinary course of business;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except sales of any security interest inventory in such assets or properties, including the Propertyordinary course of business;
(j) amendment or termination or violation of any distribution agreement or any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots other than termination by the Company pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company to any Personperson or entity, incurring other than advances to its employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurrence by the Company of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, exceeding $1,000 in the aggregate;
(m) commencement or notice notice, or to the knowledge of Shareholder or the Company, threat of commencement commencement, of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) claim of ownership by a third party of any Intellectual Property Right (as defined in Section 2.13 below) or, to the knowledge of Shareholder or the Company, infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any Company Shares or Company Rights or of any other securities of the Company;
(p) change in pricing or royalties set or charged by the Company other than in the ordinary course of business;
(q) any event or condition of any character character, that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any officer or employees thereof of the Company to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer ▇▇▇▇▇▇▇▇.▇▇▇ and their its representatives regarding the transactions contemplated by this AgreementAgreement and acts otherwise permitted by such clauses (a) through (q)).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, With respect to each of the Companies and since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except material adverse change in the ordinary course of its financial condition, liabilities, assets, business as conducted on the date of the Interim Balance Sheet and consistent with past practicesor prospects;
(b) amendments or changes to the Articles of Incorporation in its charter or Bylaws of the Companybylaws;
(c) capital expenditure or commitment by the Company in excess of $10,000 such Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction ofdestruction, damage to to, or loss of any material assets, business or customer of the Company assets (whether or not covered by insurance), including ) that constitutes a Material Adverse Effect on the PropertyCompany;
(e) labor trouble or claim of wrongful discharge of which such Company has received written notice or of which it is aware, or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the such Company;
(fg) revaluation by the such Company of any of its assets, including the Property;
(gh) declaration, setting aside aside, or payment of a dividend or other distribution with respect to the capital stock Shares of the such Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by such Company of any employee, officer, director or stockholderof its Shares;
(i) acquisition, sale, lease, license increase in the salary or other disposition compensation payable or to become payable by such Company to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any of kind for the assets of the payment, by such Company, of a bonus or other additional salary or compensation to any creation of any security interest in such assets or properties, including the Propertyperson;
(j) acquisition, sale or transfer of any material asset of such Company other than in the ordinary course of business;
(k) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the such Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersparty;
(l) loan by such Company to any person or entity, or guaranty by such Company of any loan;
(m) waiver or release of any material right or claim of the such Company, including any write-off or other compromise of any account receivable of the such Company;
(mn) commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the such Company or its affairs, including to the Projectbest of the knowledge of the Sellers;
(no) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the such Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, issuance or offer sale by such Company of employment to, any employees shares of its capital stock or of any other securities;
(q) change in pricing or if an offer was accepted people that would become employees)premiums or royalties set or charged by such Company; or
(qr) negotiation or agreement by the such Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer the Purchaser and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Stock Purchase Agreement (American Bankers Insurance Group Inc)
No Changes. Except as set forth in Schedule 2.7, or as contemplated by this Agreementhereunder, since February 29, 2000 through the date of the Interim Balance Sheethereof, there has not been, occurred or arisen any:
(a) material transaction by the Company Company, except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 20,000 in any individual case or $50,000 in the aggregate;.
(d) destruction of, damage to or loss of any material assets, business or customer of the Company assets (whether or not covered by insurance), including ) or loss of any relationship material to the PropertyCompany's business or any material customer of the Company;
(e) material change in accounting methods or practices (including any material change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except as otherwise contemplated by this Agreement other than any such increase, declaration, payment or agreement commitment in the ordinary course of business as conducted on that date and consistent with any employee, officer, director or stockholderpast practice;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company that are material, individually or in the aggregate, to the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account provisions for uncollectable accounts receivable of the Company;
(m) commencement or notice or threat in writing of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(o) issuance or sale by the Company of any shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, except in connection with the Company Option Plan;
(p) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(q) event or condition of any character that has or could reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (New Era of Networks Inc)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person;
(j) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any ----------------- Company Agreement which (i) involves the payment by the Company of greater than $25,000 per annum or which extends for more than one year, (ii) involves any Company payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iii) involves the sale of any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties, including properties except in the Propertyordinary course of business as conducted on that date and consistent with past practices;
(jl) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against against, or investigation of of, the Company or its affairs, including the Project;
(np) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or could be reasonably expected to may have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Usweb Corp)
No Changes. Except as contemplated by this Agreementset forth on Schedule 4.6 or as necessary to effect the Trails Reorganization, since the date of the Interim Balance SheetSeptember 30, 2003, there has not been, occurred or arisen any:
(a) transaction by amendment or change to the Company except in the ordinary course Certificate of business as conducted on the date Incorporation or By-Laws of any of the Interim Balance Sheet and consistent with past practicesAcquired Companies;
(b) amendments capital expenditure or changes to the Articles of Incorporation or Bylaws commitment by any of the CompanyAcquired Companies, either individually or in the aggregate, exceeding $750,000;
(c) expenditure destruction or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of any of the Company Acquired Companies (whether or not covered by insurance), including the Property;
(ed) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by any of the CompanyAcquired Companies, other than as required by GAAP;
(e) material revaluation by any of the Acquired Companies of any of its material assets in excess of amounts reserved therefor on the Current Balance Sheet;
(f) revaluation by increase (other than increases resulting from the Company calculation of reserves in the ordinary course of business consistent with past practice) or change in any assumptions underlying, or methods of its assetscalculating, including the Propertyany reserves for bad debt, any accruals, any contingency or other reserves;
(g) payment, discharge or satisfaction of any claims, encumbrances, liabilities or obligations (whether absolute, accrued, contingent or otherwise and whether due or to become due), other than the payment, discharge or satisfaction of claims, encumbrances, liabilities or obligations in the ordinary course of business consistent with past practices;
(h) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of any of the Company;
(h) material change Acquired Companies or any direct or indirect redemption, purchase or other acquisition by the Company of any capital stock of any of the Acquired Companies or any split, combination or reclassification in respect of any compensation arrangement or agreement with shares of capital stock of any employee, officer, director or stockholderof the Acquired Companies;
(i) acquisition, sale, lease, license or other disposition of any material assets or properties of any of the assets of the CompanyAcquired Companies, or any the creation of any security interest in such assets or properties, including except in each case, in the Propertyordinary course of business consistent with past practices;
(j) amendment or termination of any material contractContract, agreementexcept in each case, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectordinary course of business consistent with past practices;
(k) loan by any of the Company Acquired Companies to any Person, incurring guarantee by any of the Company Acquired Companies of any indebtedness, guaranteeing by the Company indebtedness of any indebtednessDistributed Company or other Person in each case in excess of $750,000, issuance or sale of any debt securities of any of the Company Acquired Companies, or guaranteeing by the Company creation of any debt securities security interest in any of othersthe Acquired Companies' material assets or material properties, except for (i) security interests arising in the ordinary course of business, including security interests in favor of landlords, carriers, warehousemen, processors, mechanics, materialmen or suppliers, (ii) advances to employees, directors or consultants for travel and business expenses and (iii) intercompany loans as between Acquired Companies and Distributed Companies, in each case in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of any of the CompanyAcquired Companies, including any write-off or other compromise of any account receivable of any of the CompanyAcquired Companies exceeding $100,000 individually or $1,500,000 in the aggregate;
(m) commencement or receipt of written notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit lawsuit, arbitration or judicial or administrative proceeding against or investigation of any of the Company Acquired Companies or its any of their affairs, including the Project;
(n) any event event, condition, occurrence, change or condition of any character effect that has had or could would reasonably be reasonably expected to have a material adverse impact on the Company;Material Adverse Effect; or
(o) agreement by any agreement, contract, lease or commitment or any extension or modification of the terms of any agreementAcquired Companies or, contract, lease or commitment which (i) involves to the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate Knowledge of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesCompany, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreementn).
Appears in 1 contract
Sources: Merger Agreement (Manufactured Home Communities Inc)
No Changes. Except as contemplated by this Agreementdisclosed in Section 3.9 of the Disclosure Letter, since the date Balance Sheet Date, the Company and each of its Subsidiaries has conducted its business only in the ordinary course and consistent with past practice. Without limiting the generality of the Interim foregoing sentence, since the Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by any change in the Company condition (financial or otherwise), assets (ordinary wear and tear excepted), liabilities, prospects, net worth, earning power or business of the Company, except changes in the ordinary course of business as conducted on business, none of which, individually or in the date aggregate, has been or will be materially adverse to the Company or any of the Interim Balance Sheet and consistent with past practicesits Subsidiaries;
(b) amendments any damage, destruction or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofloss, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance, adversely affecting the properties (ordinary wear and tear excepted), including business or prospects of the PropertyCompany or its Subsidiaries, or any material deterioration in the operating condition of the assets of the Company or any of its Subsidiaries (ordinary wear and tear excepted);
(c) any Encumbrance of any kind on any of the assets, tangible or intangible, of the Company or any of its Subsidiaries, other than Permitted Encumbrances as defined in Section 3.16;
(d) any strike, walkout, labour trouble or any other new or continued event, development or condition of any character which has or could materially adversely affect the business, properties or prospects of the Company or any of its Subsidiaries;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution in respect of any of the equity interests of the Company or any of its Subsidiaries, or the direct or indirect repurchase or other acquisition of equity interests of the Company or any of its Subsidiaries or any grant or issuance of any equity interests, option, warrant or other right to purchase or acquire such equity interests or securities convertible into or exchangeable for such equity interests;
(f) any increase in the salaries or other compensation payable or to become payable to (except normal increases in salaries made in the ordinary course of business and consistent with past practice with respect to employees), or any advance (excluding advances for ordinary business expenses made in the capital stock ordinary course of business and consistent with past practice) or loan to, any officer, director, independent contractor, or employee of the Company or any of its Subsidiaries, or any increase in, or any addition to, other benefits (including without limitation any bonus, profit sharing, severance, change in control, pension or equity benefits) to which any of the Company’s or any of its Subsidiaries’ officers, directors, independent contractors, or employees may be entitled, or any payments to any pension, retirement, profit sharing, bonus or similar plan except payments in the ordinary course of business and consistent with past practice made pursuant to the Benefit Plans, or any other payment of any kind to or on behalf of any officer, director, independent contractor or employee of the Company or any of its Subsidiaries (except normal payments made in the ordinary course of business and consistent with past practice with respect to such Persons);
(g) any making or authorization of any capital expenditures in excess of $10,000 or $50,000 in the aggregate;
(h) any cancellation or waiver of any right material change in to the operation of the business of the Company or its Subsidiaries or any compensation arrangement cancellation or agreement with waiver of any employee, officer, director debts or stockholderclaims of substantial value or any cancellation or waiver of any debts or claims against the Shareholders or any of their Affiliates;
(i) acquisition, any sale, lease, license transfer or other disposition of any assets of the Company or its Subsidiaries, except sales of inventory in the ordinary course of business and except for other items valued at less than $10,000 individually and $100,000 in the aggregate on the Balance Sheets;
(j) any payment, discharge or satisfaction of any liability or obligation (whether accrued, absolute, contingent or otherwise) by the Company, other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities or obligations shown or reflected on the Balance Sheets or incurred in the ordinary course of business since the Balance Sheet Date;
(k) any material adverse change or any threat of any material adverse change in the Company’s or its Subsidiaries’ relations with, or any loss or threat of loss of, any of the Company’s five (5) largest suppliers, five (5) largest referral sources (who are not also customers) or customers representing $100,000 or more in annual revenue;
(l) any write-offs as uncollectible of any notes or accounts receivable of the Company or its Subsidiaries or write-downs of the value of any assets or inventory by the Company or its Subsidiaries other than in immaterial amounts (any aggregate amount of $10,000 or less is deemed immaterial);
(m) any change by the Company or its Subsidiaries in any method of accounting or keeping its books of account or accounting practices including any changes in the assumptions underlying or method of calculating bad debt or other reserves of the Company, or any creation of any security interest change or modification in such assets either if the Company’s existing credit, collection or propertiespayment policies, procedures and practices with respect to accounts receivable and accounts payable, including the Property;
without limitation, acceleration of collections of receivables, failure to make or delay in making collections of receivables (j) amendment whether or termination not past due), acceleration of any material contract, agreement, permit, approval payment of payables or license failure to which the Company is a party pay or by which it is bound, including any purchase and sale agreements for lots delay in the Project;
(k) loan by the Company to any Person, incurring by the Company payment of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Projectpayables;
(n) any event creation, incurrence, assumption or condition guarantee by the Company or its Subsidiaries of any character that has obligations or could be reasonably expected liabilities (whether absolute, accrued, contingent or otherwise and whether due or to have a material adverse impact on become due), except in the Companyordinary course of business, or any creation, incurrence, assumption or guarantee by the Company or its Subsidiaries of any indebtedness for money borrowed;
(o) any agreementpayment, contractloan or advance of any amount to or in respect of, or the sale, transfer or lease of any properties or commitment assets (whether real, personal or any extension mixed, tangible or modification of the terms intangible) to, or entering into of any agreement, contractarrangement or transaction with, lease any Shareholder or commitment which (i) involves any Affiliate thereof, except for compensation to the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate officers and employees of the Company other than or its Subsidiaries in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetspractice;
(p) hiring ofany disposition of or failure to keep in effect any rights in, to or for the use of any patent, trademark, service m▇▇▇, abandonment, trade name or copyright, or offer any disclosure (other than to an employee of employment tothe Company or its Subsidiaries) or other disposal or forfeiture of any trade secret, process or know-how;
(q) any Tax election (or revocation or change of a Tax election), any employees (change in any method of accounting for Tax purposes, or if an offer was accepted people that would become employees)any settlement or compromise of any Tax liability other than in each case in the ordinary course of business consistent with past practice; or
(qr) negotiation any transaction, agreement or event outside the ordinary course of the Company’s or its Subsidiaries’ business or inconsistent with past practice, including, but not limited to, any agreement by the Company or any officer or employees Affiliate thereof to do compensate any officer, director, independent contractor, or employee of the things described Company or its Subsidiaries in any manner upon or with respect to the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding consummation of the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except Since the Balance Sheet Date, except as contemplated by this Agreement, since the date of the Interim Balance Sheetset forth on ---------- Schedule 2.9, there has not been, occurred or arisen any:: ------------
(a) transaction by the Company except in the ordinary course Ordinary Course of business Business as conducted on the that date of the Interim Balance Sheet and consistent with past practicespractice (which practice has been reasonably and substantially consistent with the practices in the Company's industry) ("Ordinary Course of Business");
(b) amendments capital expenditure or changes to the Articles of Incorporation or Bylaws of commitment for capital expenditure by the Company, either individually or in the aggregate, exceeding $25,000;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) or loss of any business or customers of the PropertyCompany that (i) accounted for $25,000 or more of the Company's revenues for fiscal year 1999 or (ii) is projected to account for $50,000 or more of the Company's projected revenue for fiscal year 2000;
(ed) except as specifically requested by Parent, change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fe) except as specifically requested by Parent, revaluation by the Company of any of its assets, including the Propertyother than depreciation as required by GAAP;
(gf) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of any Company Stock or profits, or any split, combination or reclassification of Company Stock or the issuance or authorization of the issuance of any securities in respect of, in lieu of or in substitution for any share in the stated capital stock of the Company, or the repurchase, redemption or other acquisition, directly or indirectly, of any Company Stock or any Company Rights, other than in connection with the Company's repurchase right under stock purchase or stock option agreements with employees or consultants at cost;
(g) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration or payment, or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such Person, except as made in the Ordinary Course of Business;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except sales of any security interest inventory and licenses of software pursuant to the Company's standard license agreement, each in such assets or properties, including the PropertyOrdinary Course of Business;
(ji) amendment amendment, termination, violation by it, or, to its knowledge, violation of a counterparty of any distribution agreement or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots other than termination by the Company pursuant to the terms thereof in the ProjectOrdinary Course of Business;
(kj) loan by the Company to any Person, incurring other than advances to its employees for travel and business expenses in the Ordinary Course of Business, or incurrence by the Company of any indebtednessindebtedness other than trade debt in the Ordinary Course of Business, guaranteeing guaranty by the Company of any indebtednessindebtedness or debt securities of others, or issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersCompany;
(lk) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, exceeding $2,500 in the aggregate;
(ml) commencement or notice notice, or to the knowledge of the Company, threat of commencement commencement, of any lawsuit or judicial proceeding by or administrative proceeding against the Company, or of any investigation of the Company or its affairs;
(m) to the Company's knowledge, including any claim of ownership by a third party of any Intellectual Property Asset or infringement by the ProjectCompany of any third party's intellectual property rights;
(n) issuance or sale by the Company of any Company Stock, Company Rights or any other securities of the Company, except pursuant to the Company's stock option plan or upon exercise or conversion of exercisable or convertible securities and except in connection with the Company's Series D Preferred Stock financing;
(o) change in pricing or royalties set or charged by the Company other than in the Ordinary Course of Business; or
(p) any event or condition of any character character, that has had or the Company believes could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Software Com Inc)
No Changes. Except Since the Interim Date Cell-Matrix has conducted its business only in the ordinary course. Without limiting the generality of the foregoing sentence, except as contemplated by this Agreementdisclosed in Section 4.9 of Cell-Matrix Disclosure Schedule, since the date of the Interim Balance Sheet, Date there has not been, occurred or arisen any:
(a) transaction by the Company except any material change in the ordinary course financial condition, assets, liabilities, net worth or business of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCell-Matrix;
(b) amendments any damage, destruction or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofloss, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including adversely affecting the Propertyproperties in the aggregate or business of Cell-Matrix, or any deterioration in the operating condition of Cell-Matrix's assets;
(c) any mortgage, pledge or actual or pending lien, charge or Encumbrance of any kind of any of Cell-Matrix's assets, tangible or intangible;
(d) any strike, walkout, labor trouble or any other new or continued event, development or condition of similar character at Cell-Matrix;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution in respect of any of the stock of Cell-Matrix, or any direct or indirect redemption, purchase or other acquisition of any stock of Cell-Matrix or any rights to purchase such stock or securities convertible into or exchangeable for such stock;
(f) any increase in the salaries or other compensation payable or to become payable to, or any advance (excluding advances for ordinary business expenses) or loan to, any officer, director, employee, agent or Stockholder of Cell-Matrix, or any increase in, or any addition to, other benefits (including without limitation any bonus, profit sharing, pension or other plan) to which any of Cell-Matrix's officers, directors, employees, agents or Stockholders may be entitled, or any payments to any pension, retirement, profit sharing, bonus or similar plan except payments in the ordinary course of business and consistent with respect past practice made pursuant to the employee benefit plans described in Section 4.17 of Cell-Matrix Disclosure Schedule, or any other payment of any kind to or on behalf of any such officer, director, employee, agent or Stockholder other than payment of base compensation and reimbursement or advance for reasonable business expenses in the ordinary course of business;
(g) any making or authorization of any capital stock expenditures in excess of the Company$5,000 per month;
(h) any cancellation or waiver of any right material change in to the operation of Cell-Matrix's business or any compensation arrangement cancellation or agreement with waiver of any employee, officer, director debts or stockholderclaims;
(i) acquisition, any sale, lease, license transfer or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the PropertyCell-Matrix;
(j) amendment any payment, discharge or termination satisfaction of any material contractLiability by Cell-Matrix, agreementother than the payment, permitdischarge or satisfaction, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectordinary course of business, of Liabilities shown or reflected on the Interim Financial Statements;
(k) loan by the Company to any Person, incurring by the Company material adverse change or any threat of any indebtednessmaterial adverse change in Cell-Matrix's relations with, guaranteeing by the Company or any loss or threat of loss of, any indebtednessof Cell-Matrix's material customers, issuance clients or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuppliers, including without limitation, Cell-Matrix's licensees and licensors;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise offs as uncollectable of any account notes or accounts receivable of Cell-Matrix or write-downs of the Companyvalue of any assets by Cell-Matrix;
(m) commencement any change by Cell-Matrix in any method of accounting or notice keeping its books of account, accounting practices, investment practices, or threat of commencement of any lawsuit claims, payment and processing practices or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Projectpolicies;
(n) any event creation, incurrence, assumption or condition guarantee by Cell-Matrix of any character that has Liabilities, except in the ordinary course of business, or could be reasonably expected to have a material adverse impact any creation, incurrence, assumption or guarantee by Cell-Matrix of any indebtedness for money borrowed (other than renewals on comparable terms of Liabilities reflected on the CompanyInterim Financial Statements);
(o) any agreementpayment, contractloan or advance of any amount to or in respect of, lease or commitment or any extension transfer or modification lease of the terms any properties or assets (whether real, personal or mixed, tangible or intangible) to, or entering into of any agreement, contractarrangement or transaction with, lease any Related Party except for compensation to the officers and employees of Cell-Matrix at rates not exceeding the rates of compensation disclosed in Section 4.18 of Cell-Matrix Disclosure Schedule or commitment which as permitted in clause (if) involves of this Section 4.9;
(p) any disposition of or failure to keep in effect any rights in, to or for the payment use of greater than $25,000 per annumany patent, (ii) extends for more than one (1) yeartrademark, (iii) involves service ▇▇▇▇, trade name or copyright, or any payment or obligation disclosure to any affiliate of the Company Person not an employee or Related Party (other than disclosures to Cell-Matrix, Buyer or those made in the ordinary course of business as conducted on that date and consistent with past practices, pursuant to an effective confidentiality agreement) or (iv) involves the sale of, lease of or transfer other disposal of any interest trade secret, process or know-how used by Cell-Matrix in any material assetsits business;
(pq) hiring ofany transaction, agreement or offer event outside the ordinary course of employment toCell-Matrix's business;
(r) any amendment to the charter, any employees (bylaws or if an offer was accepted people that would become employees)other organizational documents of Cell-Matrix; or
(qs) negotiation or agreement by any failure to maintain in full force and effect substantially the Company or any officer or employees thereof to do any same level and types of insurance coverage as in effect on the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Interim Date.
Appears in 1 contract
Sources: Merger Agreement (Cancervax Corp)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetFinancial Statement Date, there has not been, occurred or arisen any:
(a) transaction any change in the assets, liabilities, financial condition or operating results of Linkstar Corporation from that reflected in the Financial Statements, except changes in the ordinary course of business;
(b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the Company Linkstar Assets;
(c) any waiver by Linkstar Corporation of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any Lien, claim or encumbrance or payment of any obligation by Linkstar Corporation, except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes that is not material to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, properties, financial condition, operating results or business or customer of the Company Linkstar Corporation (whether or not covered by insuranceas such business is presently conducted), including the Property;
(e) any material change in accounting methods or practices (including amendment to a material contract or arrangement by which Linkstar Corporation or any change in depreciation of its assets or amortization policies properties is bound or rates) by the Companysubject;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employeeEmployee, officer, or director of Linkstar Corporation;
(g) any sale, assignment or stockholdertransfer of any patents, trademarks, copyrights, trade secrets or other intangible assets of Linkstar Corporation;
(h) any resignation or termination of employment of any key officer of Linkstar Corporation relating to the Business; and MSI and Seller, to their Knowledge, do not know of the impending resignation or termination of employment of any such officer or key Employee;
(i) acquisition, sale, lease, license or other disposition receipt of any of the assets of the Companynotice that there has been a loss of, or material order cancellation by, any creation major customer of any security interest in such assets or properties, including the PropertyLinkstar Corporation;
(j) amendment any mortgage, pledge, transfer of a security interest in, or termination Lien, created by Linkstar Corporation, with respect to any of any its material contractproperties or assets, agreement, permit, approval except Liens for Taxes not yet due or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectpayable;
(k) loan any loans or guarantees made by Linkstar Corporation to or for the Company to benefit of its Employees, officers or directors, or any Personmembers of their immediate families, incurring by other than travel advances and other advances made in the Company ordinary course of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersits business;
(l) waiver any declaration, setting aside or release payment or other distribution in respect of any right or claim of the CompanyPurchased Stock, including or any write-off direct or indirect redemption, purchase or other compromise acquisition of any account receivable of the CompanyPurchased Stock by Seller or Linkstar Corporation, respectively;
(m) commencement or notice or threat of commencement of to MSI’s and Seller’s Knowledge, any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any other event or condition of any character that has might materially and adversely affect the assets, properties, financial condition or could be reasonably expected to have a material adverse impact on operating results of Linkstar Corporation or the Company;
Business (o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeessuch Business is presently conducted); or
(qn) negotiation any agreement or agreement commitment by the Company or any officer or employees thereof Linkstar Corporation to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Section 4.20.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mace Security International Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, and limited to ---------- the Actual Knowledge of the Company for purposes of Article VIII, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment for capital expenditure by the Company in excess of $10,000 individually 5,000 in any individual case or $50,000 15,000 in the aggregateaggregate not otherwise disclosed in writing to Parent;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property) that would have a Material Adverse Effect;
(e) change in accounting methods strike, work stoppage, or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(fg) revaluation by the Company of any of its assets, including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock except repurchases of unvested capital stock under the Company Option Plan;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person, except, in each case, to employees who are not officers or directors of the Company in the ordinary course of business and except as otherwise contemplated by this Agreement and to severance payments made in connection with this Agreement in with the consent of Parent;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) transfer to any person or entity any rights to the Company Intellectual Property Rights (as defined in Section 2.11(a) below) other than licensing of Company Intellectual Property Rights in the ordinary course of business;
(l) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectwhich amendments or terminations have not been specifically disclosed to Parent;
(km) the loan by the Company to any Person, person or entity or the incurring by the Company of any indebtedness, the guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company other than such waiver or lease made in the ordinary course of business and without a Material Adverse Effect on the Company;
(mo) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(np) notice of any claim of ownership by a third party of the Company Intellectual Property Rights or of infringement by the Company of any third party's intellectual property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, except to employees in connection with the issuance, amendment or exercise of any stock options under the Company's Option Plan or Company Warrants or the issuance of the Company Series E;
(r) any agreements pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products of the Company;
(s) event or condition of any character that has or could reasonably would be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than revenue fluctuations in the ordinary course of business business, the incurrence of Merger related expenses (including related severance payments to Company employees as conducted on that date and consistent agreed to with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesParent); or
(qt) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than as contemplated in the negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions transactions, including but not limited to payments of severance to employees of the Company, contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Level 8 Systems)
No Changes. Except as contemplated by this AgreementAs outlined in Schedule 2.6, since May 31, 2012 (the “FOUNDERS Balance Sheet Date”), FOUNDERS has conducted its business only in the ordinary course. Without limiting the generality of the foregoing sentence, to the best of FOUNDERS’S knowledge and belief, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
: (a) transaction by any material adverse change in the Company financial condition, assets, liabilities, prospects, net worth, earning power or business of FOUNDERS except changes in the ordinary course of business as conducted on business, none of which, individually or in the date of the Interim Balance Sheet and consistent with past practices;
aggregate, has been or will be materially adverse to FOUNDERS ; (b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assetsdamage, business destruction or customer of the Company (loss, whether or not covered by insurance), including adversely affecting the Property;
properties, business or prospects of FOUNDERS or any material deterioration in the operating condition of the assets of FOUNDERS ; (c) any mortgage or pledge on, or subject to any Lien of, any of FOUNDERS’s assets, tangible or intangible; (d) any strike, walkout or labor trouble; (e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with in respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets shares of the CompanyFOUNDERS’s or any direct or indirect redemption, purchase or other acquisition of any shares of FOUNDERS or any rights to purchase such shares or compensation payable or to become payable to, or any creation advance (excluding advances for ordinary business expenses) or loan to, any officer, director, employee or shareholder of any security interest in such assets or properties, including the Property;
FOUNDERS (j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except increases made in the ordinary course of business as conducted on that date and consistent with past practicespractice), or any increase in or any addition to other benefits (ivincluding without limitation any bonus, profit-sharing, pension or other plan) involves to which any of its officers, directors, employees or shareholders may be entitled, or any payments to any pension, retirement, profit-sharing, bonus or similar plan except payments in the sale ordinary course of business and consistent with past practice; (g) any making of or commitment to make any capital expenditures in excess of $10,000; (h) any cancellation or waiver of any right material to the operation of the business of FOUNDERS , or any cancellation or waiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any Related Party (as defined in Section 2.25 below); (i) any payment, discharge or satisfaction of any liability or obligation (whether accrued, absolute, contingent or otherwise) by FOUNDERS , other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities or obligations shown or reflected on the Balance Sheet or incurred in the ordinary course of business since the Balance Sheet Date; (j) any sale, transfer or other disposition of any assets of FOUNDERS , except sales of inventory in the ordinary course of business; (k) any material adverse change or any threat of any adverse change in the relations of FOUNDERS , with, or any loss or threat of loss of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described important suppliers, clients or customers of FOUNDERS ; (l) any creation, incurrence, assumption or guarantee by FOUNDERS of any obligations or liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due), except in the preceding clauses (a) through (p) (ordinary course of business, or any creation, incurrence, assumption or guarantee by FOUNDERS of any indebtedness for money borrowed, other than negotiations with Monaco trade payables; or Buyer (m) any creation, incurrence, assumption or guarantee by FOUNDERS of any obligations or liabilities (whether absolute, accrued, contingent or otherwise and their representatives regarding whether due or to become due), except in the transactions contemplated ordinary course of business, or any creation, incurrence, assumption or guarantee by this Agreement)FOUNDERS of any indebtedness for money borrowed, other than trade payables.
Appears in 1 contract
No Changes. Except as expressly contemplated by this Agreement, or other than as set forth in Section 2.11 of the Disclosure Schedule, since the date Balance Sheet Date, each of the Interim Balance Sheet, Company and each Proxima Subsidiary has operated the Business only in the ordinary course and there has not been, occurred or arisen any:
(a) amendment or change to their respective Charter Documents or Subsidiary Charter Documents, as applicable;
(b) amendment of any term of any outstanding security of the Company or any Proxima Subsidiary other than Company Options;
(c) expenditure, transaction or commitment by the Company except or any Proxima Subsidiary exceeding $50,000 individually or $100,000 in the aggregate with respect to any single Person;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any Proxima Subsidiary), other than payments, discharges, waivers or satisfactions in the ordinary course of business as conducted on or liabilities reflected or reserved against in the date of the Interim Current Balance Sheet and consistent with past practicesSheet;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(de) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or any Proxima Subsidiary (whether or not covered by insuranceinsurance or revaluation by the Company or any Proxima Subsidiary of any of their assets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable);
(ef) material employment dispute, including but not limited to, claims or matters raised by any individuals or any workers' representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any Proxima Subsidiary;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any Proxima Subsidiary other than as required by GAAP;
(fh) revaluation by the Company change in any material election in respect of Taxes (as defined in Section 2.13(a) hereof), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of its assetsTaxes, including or extension or waiver of the Propertylimitation period applicable to any claim or assessment in respect of Taxes;
(gi) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or any Subsidiary Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or Subsidiary Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or Subsidiary Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company or any Proxima Subsidiary of any shares of Company Capital Stock or Subsidiary Capital Stock, as applicable (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), other than with respect to the capital stock of the CompanyCompany Options as contemplated herein;
(hj) material change in issuance, grant, delivery or sale by any compensation arrangement of the Proxima Subsidiaries of any shares of Subsidiary Capital Stock or agreement with securities convertible into, or exercisable or exchangeable for, shares of Subsidiary Capital Stock, or any employeesecurities, officerwarrants, director options or stockholderrights to purchase any of the foregoing;
(ik) acquisitiongrant, increase in or other change to the salary or other compensation payable or to become payable by the Company or any Proxima Subsidiary to any of their respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any Proxima Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any Proxima Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any Proxima Subsidiary or by which they or any of their assets are bound, other than in the ordinary course of business;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the CompanyCompany or any Proxima Subsidiary (other than Intellectual Property), including, but not limited to, the sale of any accounts receivable of the Company or any Proxima Subsidiary, or any creation of any security interest in Lien on such assets or properties, including other than non-exclusive licenses of the PropertyCompany Products by the Company or any Proxima Subsidiary in the ordinary course of business;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company or any Proxima Subsidiary to any Person (other than advances to employees of the Company in the ordinary course of business for business-related expenses), purchase by the Company or any Proxima Subsidiary of any debt securities of any Person, incurring or capital contributions to investment in any Person;
(o) incurrence by the Company or any Proxima Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any Proxima Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Proxima Subsidiary or guaranteeing by the Company of any debt securities of others;
(lp) waiver or release of any right or claim of the CompanyCompany or any Proxima Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Proxima Subsidiary, other than in the ordinary course of business;
(mq) commencement or settlement of any lawsuit by the Company or any Proxima Subsidiary, the commencement, settlement, notice or written threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company, any Proxima Subsidiary or investigation their respective affairs;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its affairs, including any Proxima Subsidiary in or to the ProjectIntellectual Property (as defined below) owned by the Company or any Proxima Subsidiary or of infringement by the Company or any Proxima Subsidiary of any other Person's Intellectual Property (as defined below);
(ns) (i) sale or license of any Intellectual Property owned by the Company or any Proxima Subsidiary or execution of any agreement with respect to Intellectual Property owned or exclusively licensed by the Company or any Proxima Subsidiary with any Person, (ii) purchase or license of any Intellectual Property or execution of any agreement with respect to the Intellectual Property of any Person, (iii) agreement or modification to any Contract pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property, or (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company or any Proxima Subsidiary, except in the case of clause (i), pursuant to the Company's End User Agreement, substantially on standard terms and conditions;
(t) any event agreement to purchase or sell any interest in real property or grant any security interest in any real property, enter into any lease, sublease, or other occupancy agreement with respect to any real property, or alter, amend, modify or terminate any of the terms of any of the material Lease Agreement (as defined in Section 2.15(b)) by the Company or any Proxima Subsidiary;
(u) acquisition or agreement to acquire by merging or consolidating with, or by purchasing all or substantially all of the assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Business;
(v) cancellation, amendment or renewal of any insurance policy;
(w) event, occurrence, development, state of circumstances, facts, or condition of any character that has had or could would reasonably be reasonably expected to have a material adverse impact on the Company;
(o) any agreementhave, contract, lease individually or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesaggregate, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)a Company Material Adverse Effect; or
(qx) negotiation or agreement by the Company or any officer Proxima Subsidiary or any of their respective officers or employees thereof on behalf of the Company or any Proxima Subsidiary, to do any of the things described in the preceding clauses (a) through (pw) of this Section 2.11 (other than negotiations with Monaco or the Buyer and their its representatives regarding the transactions contemplated by this Agreement and any Related Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 5,000 individually or $50,000 10,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $2,000 in any one case, or $5,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Balance Sheet;
(e) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(ef) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fi) revaluation by the Company of any of its assets, including the Property;
(gj) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hk) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholder;such person.
(il) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except for fair market value to the Company in the ordinary course of any security interest in such assets or properties, including the Propertybusiness and consistent with past practices;
(jm) amendment or termination (other than pursuant to its terms) of any Contract or other material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;,
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lo) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and business, consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring ofissuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities, except for the issuance of Company Common Stock upon the issuance of stock options;
(q) change in any employees (material respect in pricing or if an offer was accepted people that would become employees)royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this AgreementSince July 31, since the date of the Interim Balance Sheet1999, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Amalgamation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 25,000 in any individual case or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except in each case in the ordinary course of business or as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtednessindebtedness (other than indebtedness to Parent or its affiliates), guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany in an amount in excess of $1,000;
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetMay 31, 1997, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, material business or material customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or consultants, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment ------------------ Company Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or, to the knowledge of the Company and the Principal Shareholders, threat of commencement of any lawsuit or proceeding against, or investigation of, the Company;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or, any employees (or if an offer was accepted people that would become employees)to the knowledge of the Company and the Principal Shareholders, may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company Company, or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by Since September 30, 2024, except as set forth in Section 2.12(a) of the Disclosure Schedule and except for the execution of this Agreement and the discussions, negotiations and the transactions related hereto, (i) the Company except has conducted its business in all material respects in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
business; (bii) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
there has not been (cA) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
Material Adverse Effect, (dB) any damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance)) that had or might have a Material Adverse Effect, including the Property;
(eC) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by material adverse effect on the Company;
’s sales patterns, pricing policies, Accounts Receivable or accounts payable, (fD) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which adverse effect on the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company customary methods of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation operation of the Company or its affairsbusiness or the manner in which the Company’s business is conducted, including or (E) any material adverse effect on the Projectrelationships between the Company on the one hand and any joint venture partners, suppliers, licensors, customers, licensees, lessors, insurers or other Persons with whom the Company has material business relationships; and (iii) the Company has not experienced, and to the Knowledge of the Company there are not any facts that would give rise to, any business interruptions or Liabilities arising out of, resulting from or related to COVID-19 or any COVID-19 Measures.
(b) Since September 30, 2024, except as set forth in Section 2.12(b) of the Disclosure Schedule, the Company has not:
(i) amended its Organizational Documents;
(nii) (A) declared, set aside or paid any event dividends, or condition made any distributions or other payments in respect of its Equity Interests, (B) split, combined, recapitalized or reclassified any of its Equity Interests or issued or authorized or proposed the issuance of any character that has other securities in respect of, in lieu of or could be reasonably expected to have a material adverse impact on the Companyin substitution for its Equity Interests, or (C) purchased, redeemed or otherwise acquired any of its Equity Interests;
(oiii) authorized for issuance, issued, granted, sold, delivered or agreed or committed to issue, grant, sell or deliver any of its Equity Interests;
(iv) created, incurred, assumed, guaranteed or otherwise became liable or obligated with respect to any indebtedness, or made any loan or advance to, or any investment in, any Person;
(v) made or committed to make any capital expenditures, capital additions, capital improvements or purchase of fixed assets;
(vi) reduced the amount of insurance coverage provided by existing Insurance Policies;
(vii) sold, transferred, leased, mortgaged, encumbered or otherwise disposed of, or agreed to sell, transfer, lease, mortgage, encumber or otherwise dispose of, any properties or assets except (i) in the ordinary course of business, or (ii) pursuant to any Material Contract;
(viii) terminated or waived any right of substantial value;
(ix) adopted, amended, terminated or made any other change to any Employee Benefit Plan or increased the compensation payable to any employee or Contingent Worker (including any increase pursuant to any bonus, profit-sharing or other incentive plan or commitment), or hired or fired any officer or any employee whose annual base salary is in excess of $10,000;
(x) merged into or with or consolidated with, or acquired the business or assets of, any Person;
(xi) purchased any securities of any Person;
(xii) (A) made, changed or revoked any Tax election, (B) changed any annual Tax accounting period, (C) adopted or changed any method of Tax accounting, (D) filed any amended Tax Return, (E) entered into any closing agreement, contract(F) settled any Tax claim or assessment, lease (G) surrendered any right to claim a Tax refund, offset or commitment or other reduction in Tax liability, (H) consented to any extension or modification waiver of the terms limitations period applicable to any Tax claim or assessment, (I) failed to file any Tax Return or pay any Tax (including any estimated Tax) when due and payable, or (J) in each case, taken any other similar action or agreed to take any such action relating to the filing of any agreement, contract, lease Tax Return or commitment which (i) involves the payment of greater than $25,000 per annumany Tax;
(xiii) entered into, amended or terminated any Material Contract;
(iixiv) extends settled any Action or filed any motions, orders, briefs or settlement agreements in any proceeding before any Governmental Authority or any arbitrator;
(xv) sold, licensed, transferred, abandoned or permitted to lapse or expire any Company Intellectual Property, except for more than one (1) year, (iii) involves any payment non-exclusive licenses granted to or obligation to any affiliate of the Company other than from third parties in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetspractice;
(pxvi) hiring ofmaintained its books and records other than in the usual, regular and ordinary manner on a basis consistent with prior periods or offer made any change in any of employment toits accounting methods or practices;
(xvii) proposed or adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) accelerated or delayed the collection of any employees notes or Accounts Receivable in advance of or beyond their regular due dates or the dates when they would have been collected in the ordinary course of business consistent with past practice;
(xix) delayed or if an offer was accepted people that accelerated payment of any accrued expense, trade payable or other liability beyond or in advance of its due date or the date when such liability would become employees)have been paid in the ordinary course of business consistent with past practice;
(xx) liquidated or changed Inventory and material purchasing patterns to be inconsistent with normal course or reduced such purchase patterns to levels which would impact the ability to service demand; or
(qxxi) negotiation agreed or agreement by the Company or any officer or employees thereof committed to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of ---------- the Interim Balance SheetNovember Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company Seller relating to the Business except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Seller relating to the Business, either individually or $50,000 in the aggregate, exceeding $25,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company Assets (whether or not covered by insurance), including ;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action relating to the PropertyBusiness;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanySeller and relating to the Business;
(f) revaluation write-up by the Company Seller of any of its assets, including the PropertyAssets;
(g) increase in the salary or other compensation payable or to become payable by the Seller to any of its officers, directors, employees or advisors employed in the Business, or the declaration, setting aside payment or payment commitment or obligation of any kind for the payment, by the Seller, of a dividend bonus or other distribution additional salary or compensation to any such person except as otherwise contemplated by this Agreement or the transactions contemplated hereby, other than normal course of business salary increases in connection with respect to the capital stock ongoing yearly reviews or promotions (none of which exceeds 10% of the Companyprevious year's salary);
(h) material change acquisition, sale or transfer of any Asset of the Seller, except in any compensation arrangement or agreement with any employee, officer, director or stockholderthe ordinary course of business as conducted on that date;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company Seller is a party or by which it or its properties or assets is bound, including any purchase bound and sale agreements for lots which is utilized in the ProjectBusiness;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lj) waiver or release of any right or claim of the CompanySeller related to the Business, including any write-off or other compromise of any account receivable of the CompanySeller related to the Business;
(mk) the commencement or notice or or, to the knowledge of Seller, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company Seller or its affairs, including affairs relating to the ProjectBusiness;
(l) notice of any claim of ownership by a third party of Seller Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Seller of any third party's intellectual property rights relating to the Business;
(m) change in pricing or royalties set or charged by the Seller relating to the Business;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on impair the Company;
(o) any agreement, contract, lease Seller's Business or commitment or any extension or modification the value of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Business; or
(qo) negotiation or agreement by the Company Seller or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pn) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Purchase Agreement (Convergent Communications Inc /Co)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the CompanyCompany or any Subsidiary;
(c) capital expenditure or unsatisfied commitment by the Company in excess of or any Subsidiary, either individually exceeding $10,000 individually or $50,000 in the aggregateaggregate exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company or any Subsidiary (whether or not by covered by insurance), including the Property;
(e) change in accounting methods labor trouble or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) resignation or termination of any key officers or employees of the Company or any Subsidiary and the Company, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer or employee;
(g) revaluation by the Company or any Subsidiary of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in Company or any compensation arrangement Subsidiary, or agreement with any employeedirect or indirect redemption, officer, director purchase or stockholderother acquisition by the Company or any Subsidiary of any Company Capital Stock or the capital stock of any Subsidiary;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation Subsidiary, except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company or any Subsidiary is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company or any Subsidiary to any Personperson or entity, incurring by the Company or any Subsidiary of any indebtedness, guaranteeing by the Company or any Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of the CompanyCompany or any Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Subsidiary;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs or any Subsidiary or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company or any Subsidiary of any third party's intellectual property rights;
(o) issuance or sale by the Company or any Subsidiary of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by the Company or any Subsidiary to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company or any Subsidiary;
(q) event or condition of any character that has had or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment Company or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Subsidiary; or
(qr) negotiation or agreement by the Company or any Subsidiary or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 3.7, since the date of the Interim ClickOver Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company ClickOver except in the ordinary course of business as conducted on the date of the Interim ClickOver Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the CompanyClickOver;
(c) capital expenditure or commitment by the Company in excess of $10,000 ClickOver, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company ClickOver (whether or not by covered by insurance), including the Property;
(e) change in accounting methods labor trouble or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) resignation or termination of any key officers or employees of ClickOver, and to the Knowledge of ClickOver, no impending resignation or termination of employment of any such officer or employee;
(g) revaluation by the Company ClickOver of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock ClickOver Capital Stock, or any direct or indirect redemption, purchase or other acquisition by ClickOver of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderClickOver Capital Stock;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of ClickOver, except in the Company, or any creation ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) except as contemplated herein, amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company ClickOver is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan loans by the Company ClickOver to any Personperson or entity, incurring by the Company ClickOver of any indebtedness, guaranteeing by the Company ClickOver of any indebtedness, issuance or sale of any debt securities of the Company ClickOver or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of the CompanyClickOver, including any write-off or other compromise of any account receivable of the CompanyClickOver;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company ClickOver or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of any ClickOver Intellectual Property Rights (as defined in Section 3.11 below) or of infringement by ClickOver of any third party's intellectual property rights;
(o) issuance or sale by ClickOver of any of its shares of ClickOver Capital Stock, or securities exchangeable, convertible or exercisable therefore, or of any other of its securities;
(p) change in pricing or royalties set or charged by ClickOver to its customers or licensees or in pricing or royalties set or charged by persons who have licensed ClickOver Intellectual Property Rights to ClickOver;
(q) event or condition of any character that has had or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)ClickOver; or
(qr) negotiation or agreement by the Company ClickOver or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Focalink and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Adknowledge Inc)
No Changes. Except as contemplated by this AgreementSince the Balance Sheet Date, since the date (x) each of the Interim Balance SheetGroup Companies has conducted, operated and managed its business in the Ordinary Course of Business; (y) there has not been, occurred or arisen anya Material Adverse Effect with respect to the Group Companies; and (z) none of the Group Companies has:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesamended its Charter Documents, Subsidiary Charter Documents or equivalent organizational or governing documents;
(b) amendments merged or changes to the Articles consolidated itself with any other Person or adopted a plan of Incorporation complete or Bylaws of the Companypartial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization;
(c) expenditure declared or commitment paid any dividends on or made any other distributions (whether in cash, stock or other property) in respect of any of its Equity Interests, or split, combined or reclassified any of its Equity Interests or issued or authorized the issuance of, or committed to issue (whether subject to approval by the Board or otherwise) any Equity Interests or other securities in respect of, in lieu of or in substitution for its Equity Interests, or repurchased or otherwise acquired, directly or indirectly, any of its Equity Interests except for purchases from former Employees, non-employee directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service;
(d) made any loans or advances (other than routine expense advances to Employees of such Group Company consistent with past practice) to, or any investments in or capital contributions to, any Person, or forgiven or discharged in whole or in part any outstanding loans or advances;
(e) sold, leased, or otherwise disposed of or encumbered (other than Permitted Liens) any of its personal properties or tangible assets, or entered into any Contract with respect to the foregoing;
(f) entered into any operating lease or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(g) incurred any indebtedness for borrowed money or guaranteed any such indebtedness or issued or sold any debt securities or guaranteed any debt securities of others;
(h) made any capital expenditures, capital additions or capital improvements in excess of $10,000 25,000 individually or $50,000 in the aggregate;
(dA) destruction ofgranted any bonuses (other than the payment of bonuses accrued for services provided to the Company by Employees since January 1, damage 2024 through the Agreement Date or the payment of annual performance bonuses payable in the Ordinary Course of Business with respect to the 2024 calendar year), whether monetary or loss otherwise, or increase any wages, salary, severance, pension or other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any written agreements or required by applicable Law or with respect to any increase in wages or salary or the grant of an annual performance bonus in the Ordinary Course of Business, (B) changed the terms of employment for any employee or any termination of any material assetsemployees, business or customer (C) taken any action to accelerate the vesting or payment of the Company (whether any compensation or not covered by insurance)benefit for any current or former employee, including the Propertyofficer, director, independent contractor or consultant;
(ej) change in canceled, released or waived any claims or rights held by such Group Company;
(k) changed accounting methods or practices (including any change in depreciation or amortization policies policies) or rates) by the Company;
(f) revaluation by the Company of revalued any of its assets, assets (including writing down the Property;
(g) declaration, setting aside value of inventory or payment of a dividend writing off notes or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots accounts receivable otherwise than in the Project;
(k) loan Ordinary Course of Business), except in each case as required by the Company changes in GAAP as concurred with its independent accountants and after notice to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersBuyer;
(l) (i) made any material Tax election, (ii) changed or revoked any Tax election, (iii) adopted or changed any Tax accounting method or period except as required by applicable Law, (iv) entered into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of applicable state, local or foreign Law), (v) prepared, filed or otherwise participated in any voluntary disclosure application or agreement or similar process, (vi) applied for any Tax ruling, (vii) settled or compromised any Tax claim or assessment, (viii) consented to any extension or waiver of the limitation period applicable to any Tax claim or release of assessment, (ix) entered into any tax allocation agreement, tax sharing agreement or tax indemnity agreement, (x) surrendered any right to claim a Tax refund, or claim of the Company, including (xi) filed any write-off or other compromise of any account receivable of the Companyamended Tax Return;
(m) commencement other than with respect to the Specified Assets, entered into any agreement for the purchase, sale or notice or threat of commencement lease of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Projectreal property;
(n) any event placed or condition allowed the creation of any character that has or could be reasonably expected to have Lien (other than a material adverse impact Permitted Lien) on the Company;any of its properties; or
(o) any agreementtook or agreed in writing or otherwise to take, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things actions described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreementn).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetApril 30, 1996, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ------------------ Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $100,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not by covered by insurance), including the Property;
(e) change in accounting methods claim of wrongful discharge or practices (including any change in depreciation other claim of unlawful labor practice or amortization policies or rates) by the Companyaction;
(f) material revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or of payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any Company Capital Stock;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(ji) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kj) loan by the Company to any Personperson or entity, incurring by the Company of any indebtednessindebtedness for borrowed money, guaranteeing by the Company of or any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any 22 debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lk) material waiver or release of any right or claim of the Company, including any material write-off or other compromise of any account receivable of the Company;
(ml) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including ;
(m) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the ProjectCompany of any third party's intellectual property rights;
(n) issuance or sale by the Company of any of its shares of Company Capital Stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(o) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company;
(p) to the Company's knowledge, any event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Corsair Communications Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) except for the engagement of advisers for Third Party Expenses and transactions contemplated by this Agreement, transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and business, consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the CompanyCompany other than as contemplated by this Agreement;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, of Liabilities reflected or reserved against in the Current Balance Sheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date, payments, discharges or satisfactions of Third Party Expenses and repayment of all Company Debt;
(e) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer of the Company (intangible and whether or not covered by insurance), including the Property;
(ef) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) adoption of or change in any material Tax election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or Accounts Receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor) (other than the issuance of Company Common Stock in the Mandatory Conversion);
(k) hiring or termination of any employee or any officer of the Company, promotion, demotion or other change to the capital stock employment status or title of any employee or any officer of the Company or resignation or removal of any director of the Company;
(hl) material increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its respective officers, directors, employees, consultants or advisors, or the declaration, adoption, agreement, contract, payment or binding commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any compensation arrangement or agreement with any employee, officer, director or stockholdersuch Person;
(im) acquisitionagreement, contract, covenant, instrument, lease, license or binding commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or binding commitment to which the Company is a party or by which it or any of its assets are bound, other than agreements, contracts, covenants, instruments, leases, licenses or binding commitments entered into in the ordinary course of business, consistent with past practice;
(n) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the CompanyCompany outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any Accounts Receivable, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company to any Person, incurring or purchase by the Company of any debt securities of any Person, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) incurrence by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices, incurrence of trade payables in the ordinary course of business, consistent with past practices, and incurrence of Company Third Party Expenses in connection with the transactions contemplated by this Agreement; (lq) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyAccounts Receivable;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance SheetJune 30, 1999, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 25,000 in any individual case or $50,000 25,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company; or
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
No Changes. Except as contemplated by this Agreementset forth in SCHEDULE 2.7, since the date of the Interim Balance SheetSeptember 30, 1999, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 25,000 in any individual case or $50,000 35,000 in the aggregate;.
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in Company other than the Tax Distribution or Appraisal Rights, or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account provisions for uncollectible accounts receivable of the Company;
(mn) commencement or notice or overt threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Section 2.9 of the Company Disclosure Letter, since the date of the Interim Current Balance SheetSheet Date, there has not been, occurred or arisen any:
(aA) transaction by the Company or any of its subsidiaries except in the ordinary course of business as conducted on the date Ordinary Course of the Interim Balance Sheet and consistent with past practicesCompany's Business;
(bB) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or any of its subsidiaries;
(cC) capital expenditure or commitment by the Company or any of its subsidiaries exceeding, prior to the date hereof, $50,000 individually or $100,000 in the aggregate, and after the date hereof, which does not constitute a breach of Section 4.1.
(D) payment, discharge or satisfaction, in any amount in excess of $10,000 individually 50,000 in any one case, or $50,000 100,000 in the aggregate, of any Liability (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the Ordinary Course of the Company's Business, Liabilities reflected or reserved against in the Current Balance Sheet and Liabilities incurred after the date hereof which does not constitute a breach of Section 4.1;
(dE) destruction of, damage to or loss of any material assets, material business or material customer of the Company or any of its subsidiaries (whether or not covered by insurance), including the Property;
(eF) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(G) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its subsidiaries other than as required by GAAP;
(fH) change in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement
(I) revaluation by the Company or any of its subsidiaries of any of its their respective assets, including the Property;
(gJ) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock or any capital stock of any subsidiary of the Company, or any split, combination or reclassification in respect of any shares of Company Capital Stock or any shares of the capital stock of any subsidiary of the Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or shares of the capital stock of any subsidiary of the Company, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or by any subsidiary of the Company of the capital stock of such subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options and Company Warrants and except for Additional Employee Options issued after the date hereof which do not constitute a breach of Section 4.1 of this Agreement;
(hK) material change except for adjustments in the Ordinary Course of the Company's Business for employees (other than the officers or directors of the Company) which do not constitute a breach of Section 4.1 of this Agreement after the date hereof, increase in the salary or other compensation payable or to become payable by the Company or any of its subsidiaries to any of its officers or directors, or in the wage schedule for any other employees or advisors of the Company or any of its subsidiaries, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company or any of its subsidiaries, of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(iL) acquisitionother than the Contracts identified in Section 2.9(L) of the Company Disclosure Letter and Contracts entered into in the Ordinary Course of the Company's Business after the date hereof which do not constitute a breach of Section 4.1 of this Agreement, enter into any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its subsidiaries is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification the terms of any agreement, contract, covenant, instrument, lease, license or
(M) sale, lease, license or other disposition of any of the material assets or material properties of the Company, Company or any of its subsidiaries or any creation of any security interest in such material assets or material properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kN) loan by the Company or any of its subsidiaries to any Personperson or entity (other than test account loans given in reasonable amount in the Ordinary Course of the Company's Business and loans entered into after the date hereof in accordance with Section 4.1.N of this Agreement), incurring by the Company or any of its subsidiaries of any indebtedness, guaranteeing by the Company or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the Ordinary Course of the Company's Business;
(lO) waiver or release of any right or claim of the CompanyCompany or any of its subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its subsidiaries;
(mP) commencement the commencement, settlement, notice or, to the Knowledge of the Company, or notice or any of its subsidiaries, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its subsidiaries or its affairs, or any reasonable basis for any of the foregoing;
(Q) notice of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property or of infringement by the Company or any of its subsidiaries of any other person's Intellectual Property;
(R) issuance or sale, or contract to issue or sell, by the Company or any of its subsidiaries of any shares of Company Capital Stock or any of its subsidiaries' capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any of its subsidiaries' capital stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock upon exercise of the Company Options and Company Warrants described in Section 2.3.B of the Company Disclosure Schedule and issuances of Additional Employee Options in the Ordinary Course of the Company's Business which are not in breach of Section 4.1 hereof.
(S) Except for a transaction entered into after the date hereof in the Ordinary Course of the Company's Business which does not violate Section 4.1 hereof, the sale or license of any Company Intellectual Property or entering into of
(T) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any of its affairs, including subsidiaries except in the ProjectOrdinary Course of the Company's Business;
(nU) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment Company or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)its subsidiaries; or
(qV) negotiation or agreement by the Company or any of its subsidiaries (or any officer or employees thereof on behalf of, and binding upon, the Company or any of its subsidiaries) to do any of the things described in the preceding clauses (a) through (pu) of this Section (other than negotiations with Monaco or Buyer Sybase and their its representatives regarding the transactions Transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution with distribution, in respect to the of any equity capital or capital stock of the CompanyCompanies or any direct or indirect redemption, purchase or other acquisition of such capital or stock;
(d) any option to purchase any capital stock of the Companies granted to any person, or any employment or deferred compensation agreement entered into between each of the Companies and any of their stockholders, officers, directors, employees or consultants;
(e) any issuance or sale by the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to any union representation or any labor contract) respecting the Companies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and THI, any government policy, adopted which may materially and adversely affect the business of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of the Companies, or assumed, either by the Companies or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that is reflected in this Agreement) engaged in, by the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than one hundred thousand dollars ($100,000);
(j) any obligation or liability discharged or satisfied by the Companies, except items included in current liabilities shown on the Balance Sheet and current liabilities incurred since the date of the Balance Sheet in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than one hundred thousand dollars ($100,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of the assets Companies, except in the ordinary course of the Companybusiness, or any creation sale, assignment, lease, transfer or other disposition of any security interest in such assets its patents, trademarks, trade names, brand names, copyrights, licenses or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim of belonging to the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat to become payable by the Companies to any of commencement of any lawsuit their officers or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;employees; and
(n) any event other action or condition omission by the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
No Changes. Except as contemplated or required by this Agreement or as consented to by Parent in writing pursuant to Article V, during the period from the Balance Sheet Date to the date of this Agreement, since and during the date period from and after the Date of this Agreement to the Interim Balance SheetClosing Date, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments modification, amendment or changes change to the Articles of Incorporation Charter Documents;
(c) expenditure, transaction or Bylaws of commitment exceeding $35,000 individually or $150,000 in the aggregate by the Company;
(cd) expenditure payment, discharge, waiver or commitment by the Company satisfaction, in any amount in excess of $10,000 individually 35,000 in any one case, or $50,000 150,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against on the Current Balance Sheet;
(de) material destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer of the Company (intangible and whether or not covered by insurance), including material business or material customer of the PropertyCompany;
(ef) material employment dispute, including material claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) adoption of or change in any material election in respect of Taxes other than in the ordinary course of business, adoption or change in any material accounting method in respect of Taxes other than in the ordinary course of business, agreement or settlement of any claim or assessment in respect of material Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes (other than by reason of filing a Return within an automatically extended filing period);
(i) revaluation by the Company of any material portion of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable, other than in the ordinary course of business consistent with past practice;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) (i) increase in or other material change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its respective officers or directors or any material increase in or other material change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company to any of its Current Employees or consultants or (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus, special remuneration or other additional salary or compensation arrangement (including equity based compensation), in each case to any of its officers or agreement with directors or declaration, payment or commitment or obligation of any employeekind for the material payment (whether in cash or equity) by the Company of a severance payment, officertermination payment, director bonus, special remuneration or stockholderother additional salary or compensation (including equity based compensation), in each case to any of its Current Employees or consultants;
(il) acquisitionentering into any Material Contract or any termination, extension, amendment or modification of the terms of any Material Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including in each case other than in the Propertyordinary course of business consistent with past practice;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company to any PersonPerson (except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchase by the Company of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for obligations to reimburse Employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(lp) waiver or release of any material right or claim of the Company, including any write-off waiver, release or other compromise of any material account receivable of the Company;
(mq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, written notice or, to the knowledge of the Company, threat or threat of commencement other notice of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation relating to any of their businesses, properties or assets;
(r) written notice of any claim or potential claim of ownership, interest or right by any Person other than the Company of any of the Company Material Intellectual Property or its affairs, including of infringement by the ProjectCompany of any other Person’s Intellectual Property;
(ns) issuance, grant, delivery, sale or purchase of, or proposal, Contract to issue, grant, deliver, sell or purchase, by the Company, of (i) any event shares of Company Capital Stock or condition securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or (ii) any character that has subscriptions, warrants, options, rights or could be reasonably expected securities to have a material adverse impact on acquire any of the Companyforegoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Company Option Plan;
(ot) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which other than entering into (iy) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate non-exclusive licenses and related agreements with respect thereto of the Company other Products with a retail value (i.e. full price on Company’s standard price list) of less than $35,000 to end users pursuant to written agreements in the ordinary course of business as conducted on that date and consistent do not materially differ in substance from the Company’s standard form(s) including attachments (which are included in Section 3.14(k) of the Disclosure Schedule) or that, if different from the standard form, do not contain any terms that are materially less favorable to the Company than the corresponding term of the standard form, or (z) agreements relating solely to licensing of Shrink-Wrapped Code to the Company for its own use entered into in the ordinary course of business: (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with past practicesrespect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person involving aggregate payments by the Company in excess of $150,000, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party involving aggregate payments by the Company in excess of $150,000, or (iv) involves material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company;
(u) a Company Material Adverse Effect;
(v) purchase or sale of, lease of or transfer of any interest in real property, entry into or renewal, amendment or modification of any material assetslease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company;
(pw) hiring acquisition by the Company of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any officer equity securities that are material, individually or employees thereof in the aggregate, to the Company;
(x) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement (other than execution of the Company standard at will offer letter);
(y) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company;
(z) any action to accelerate the vesting schedule of any Company Options or Company Common Stock;
(aa) promotion, demotion or termination or other change to the employment status or title of any Current Employee;
(bb) alteration of any interest of the Company in a Subsidiary or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any ownership interest;
(cc) cancellation, amendment or renewal of any insurance policy of the Company;
(dd) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $35,000 individually or $150,000 in the aggregate; or
(ee) agreement by the Company to do any of the things described in the preceding clauses (a) through (pdd) of this Section 3.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Omniture, Inc.)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheets there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants;
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheets and current liabilities incurred since the date of the Balance Sheets in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementdisclosed on Schedule 2.9, since the date Balance Sheet Date, each Company has conducted its businesses only in the ordinary course and consistent with past practice. Without limiting the generality of the Interim foregoing sentence, except as disclosed on Schedule 2.9, since the Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by any change in the Company financial condition, assets, liabilities, prospects, net worth, earning power or business of any Company, except changes in the ordinary course of business as conducted on business, none of which, individually or in the date of the Interim Balance Sheet and consistent with past practicesaggregate, has been or will be materially adverse to such Company;
(b) amendments any damage, destruction or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofloss, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including adversely affecting the Propertyproperties, business or prospects of any Company, or any material deterioration in the operating condition of any Company's assets;
(c) any mortgage, hypothec, prior claim, pledge or subjection to any Lien of any kind of any Company's assets, tangible or intangible;
(d) any strike, walkout, labor trouble or any other new or continued event, development or condition of any character which has or could materially adversely affect the business, properties or prospects of any Company;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with in respect to of any of the capital stock of any Company, or any direct or indirect redemption, purchase or other acquisition of any capital stock of any Company or any rights to purchase such capital stock or securities convertible into or exchangeable for such capital stock, except for the Companypurchase by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ of the one percent (1%) interest in UN (10 shares of 1,010 issued and outstanding shares) formerly held by ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ on or about February 12, 1998;
(f) any increase in the salaries or other compensation payable or to become payable to, or any advance (excluding advances for ordinary business expenses) or loan (except for the ▇▇▇▇▇▇▇▇ Receivable) to, any officer, director, employee or shareholder of any Company (except normal annual merit increases made in the ordinary course of business and consistent with past practice), or any increase in, or any addition to, other benefits (including without limitation any bonus, profit-sharing, pension or other plan) to which any of its or their officers, directors, employees or shareholders may be entitled, or any payments to any pension, retirement, profit-sharing, bonus or similar plan except payments in the ordinary course of business and consistent with past practice made pursuant to the employee benefit plans described on Schedule 2.26, or any other payment of any kind to or on behalf of any such officer, director, employee or shareholder other than payment of base compensation and reimbursement for reasonable business expenses in the ordinary course of business;
(g) any making or authorization of any capital expenditures in excess of $50,000;
(h) any cancellation or waiver of any right material change in to the operation of any compensation arrangement Company's business or agreement with any employee, officer, director cancellation or stockholderwaiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any Related Party (as such term is hereinafter defined);
(i) acquisition, any sale, lease, license transfer or other disposition of any of the assets of the any Company, or any creation except sales of any security interest inventory in such assets or properties, including the Propertyordinary course of business;
(j) amendment any payment, discharge or termination satisfaction of any material contractliability or obligation (whether accrued, agreementabsolute, permitcontingent or otherwise) by any Company, approval other than the payment, discharge or license to which the Company is a party or by which it is boundsatisfaction, including any purchase and sale agreements for lots in the Projectordinary course of business, of liabilities or obligations shown or reflected on the Balance Sheet or incurred in the ordinary course of business since the Balance Sheet Date;
(k) loan by the Company to any Person, incurring by the Company material and adverse change or any threat of any indebtednessmaterial and adverse change in any Company's relations with, guaranteeing by the Company or any loss or threat of loss of, any indebtednessCompany's important suppliers, issuance clients or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherscustomers;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise offs as uncollectible of any account notes or accounts receivable of any Company or write-downs of the Companyvalue of any assets or inventory by any Company other than in immaterial amounts or in the ordinary course of business consistent with past practice and at a rate no greater than during the twelve months ended on the Balance Sheet Date;
(m) commencement any change by any Company in any method of accounting or notice keeping its books of account or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Projectaccounting practices;
(n) any event creation, incurrence, assumption or condition guarantee by any Company of any character that has obligations or could be reasonably expected liabilities (whether absolute, accrued, contingent or otherwise and whether due or to have a material adverse impact on become due), except in the Companyordinary course of business, or any creation, incurrence, assumption or guarantee by any Company of any indebtedness for money borrowed;
(o) any agreementpayment, contractloan or advance of any amount to or in respect of, or the sale, transfer or lease of any properties or commitment assets (whether real, personal or any extension mixed, tangible or modification of the terms intangible) to, or entering into of any agreement, contractarrangement or transaction with, lease or commitment which any "Related Party" (as hereinafter defined), except for (i) involves the payment of greater than $25,000 per annumdirectors' fees, (ii) extends for more than one compensation to the officers and employees of the Companies at rates not exceeding the rates of compensation (1including bonuses) yeardisclosed on Schedule 2.21 hereto, (iii) involves distributions and/or advances from MGF to, or for the benefit of, Sellers of up to fifty percent of pre-tax income to pay income taxes with respect to MGF (as used herein, a "Related Party" means any payment or obligation to Seller, any affiliate of the Company other than in officers or directors of the ordinary course Companies, any affiliate, associate or relative of business as conducted on that date and consistent with past practicesany Seller, any Company, or any of their respective officers or directors, or any business or entity in which any Seller, any Company or any affiliate, associate or relative of any such person has any direct or material indirect interest), and (iv) involves the sale of, lease distributions or advances to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people such amounts that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described are included in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).▇▇▇▇▇▇▇▇ Receivable;
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.19 of the Disclosure Schedule, since the date of the Interim Balance Sheet, Sheet Date there has not been, occurred or arisen any:
(a) transaction by the Company except any adverse change in the ordinary course of business as conducted on the date business, financial condition or assets of the Interim Balance Sheet and consistent with past practicesCompany;
(b) amendments any damage, destruction or changes to loss (whether or not covered by insurance) adversely affecting the Articles of Incorporation or Bylaws business of the Company;
(c) expenditure any declaration, setting aside or commitment by payment of any dividend, or other distribution, in respect of any capital stock of the Company in excess or any direct or indirect redemption, purchase or other acquisition of $10,000 individually or $50,000 in the aggregatesuch stock;
(d) destruction of, damage to any employment or loss of any material assets, business or customer of deferred compensation agreement entered into between the Company (whether and any of its officers, directors, employees or not covered by insurance), including the Propertyconsultants;
(e) change in accounting methods or practices any labor union activity (including without limitation any change in depreciation negotiation, or amortization policies request for negotiation, with respect to any union representation or ratesany labor contract) by respecting the Company;
(f) revaluation any mortgage, lien, attachment, pledge, encumbrance or security interest created on any asset of the Company, or assumed by the Company of with respect to any of its such assets, including the Propertyexcept for liens permitted under Section 2.8;
(g) declaration, setting aside or payment of a dividend any indebtedness or other distribution with respect to liability or obligation incurred, or other transaction engaged in, by the capital stock Company, except those in the ordinary course of business and except for the sale of the CompanyShares as contemplated by this Agreement;
(h) material change any obligation or liability discharged or satisfied by the Company, except items included in any compensation arrangement or agreement with any employee, officer, director or stockholdercurrent liabilities shown on the Balance Sheet and current liabilities incurred since the Balance Sheet Date in the ordinary course of business;
(i) acquisitionany sale, saleassignment, lease, license transfer or other disposition of any of the assets asset of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness;
(j) amendment any adverse amendment, termination or termination waiver of any material contract, agreement, permit, approval or license right belonging to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;Company; or
(k) loan any increase in the compensation or benefits payable or to become payable by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance its officers or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersemployees;
(l) waiver any change with respect to the manner of conducting it business or release with respect to its method of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;accounting; or
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementcommitment, contract, lease or commitment or any extension or modification of the terms of any agreement, contractlicense, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company transaction entered into other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Company Balance Sheet, Sheet there has not ---------- been, occurred or arisen any:
(a) transaction by the Company or the Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments capital expenditures by the Company or changes to the Articles of Incorporation or Bylaws of the CompanySubsidiary aggregating more than $50,000;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofdestruction, damage to to, or loss of any material assets (including, without limitation, intangible assets, business or customer but excluding all computers distributed to, and in the possession of the Company's users in the ordinary course of the Company's business) of the Company or the Subsidiary (whether or not covered by insurance), including either individually or in the Propertyaggregate, exceeding $50,000;
(d) pending or, to the Company's or the Subsidiary's knowledge, threatened charge or complaint of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals, or any change in capitalization of software development costs) by the CompanyCompany or the Subsidiary;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside aside, or payment of a dividend or other distribution with in respect to the capital stock shares of the CompanyCompany or the Subsidiary, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its shares, other than repurchases of stock from former employees, director and consultants in accordance with agreements in effect on the date of this Agreement providing for the repurchase of shares at cost in connection with any termination of service to the Company or the Subsidiary;
(g) except as set forth in Section 2.7(g) of the Company Disclosure Letter, increase in the salary or other compensation payable or to become payable by the Company or the Subsidiary to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment by the Company or the Subsidiary of a bonus or other additional salary or compensation to any such person except in connection with and pursuant to existing bonus plans;
(h) material change except as set forth in Section 2.7(h) of the Company Disclosure Letter, acquisition (other than capital expenditures referenced in Section 2.7(b)), sale or transfer of any compensation arrangement asset of the Company or agreement with any employee, officer, director or stockholderthe Subsidiary except in the ordinary course of business and not in excess of $50,000;
(i) acquisitionexcept for contracts, saleagreements or licenses pursuant to which the aggregate of payments to become due from or to the Company or the Subsidiary is less than $50,000 and which are terminable on no more than 60 days' notice, leaseor as set forth in Section 2.7(i) of the Company Disclosure Letter, license formation, amendment or other disposition termination of any of contract, agreement or license (including any distribution agreement) to which the assets of Company or the Company, Subsidiary is a party other than termination by the Company or any creation of any security interest in such assets or properties, including the PropertySubsidiary pursuant to the terms thereof;
(j) amendment except as set forth in Section 2.7(j) of the Company Disclosure Letter, loan by the Company or termination the Subsidiary to any person or entity, or guaranty by the Company or the Subsidiary of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectloan;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities except as set forth in Section 2.7(j) of the Company or guaranteeing by the Company of any debt securities of others;
(l) Disclosure Letter, waiver or release of any right rights or claim claims of the CompanyCompany or the Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or the Subsidiary, in excess of $50,000 in the aggregate;
(ml) except as set forth in Section 2.7(l) of the Company Disclosure Letter, the commencement or notice or, to the knowledge of the Company or the Subsidiary, the threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company or its affairs, including the ProjectSubsidiary or the affairs of either;
(nm) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(on) any agreementissuance, contract, lease sale or commitment redemption by the Company or any extension or modification of the terms Subsidiary of any agreementof its shares or of any other of its securities, contract, lease or commitment which except (i) involves options disclosed in Section 2.2 of the payment of greater than $25,000 per annumCompany Disclosure Letter, (ii) extends repurchases of stock from former employees, directors and consultants in accordance with agreements in effect on the date of this Agreement providing for more than one (1) year, the repurchase of shares at cost in connection with any termination of service to the Company and (iii) involves any payment or obligation to any affiliate as otherwise disclosed in Section 2.7(n) of the Company other than Disclosure Letter; or
(o) material change in pricing or royalties set or charged by the ordinary course of business as conducted on that date and consistent with past practices, Company or (iv) involves the sale of, lease of or transfer of any interest in any material assets;Subsidiary; or
(p) hiring ofany agreement (written, oral or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qotherwise) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (po) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Emachines Inc /De/)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim December 31 Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $20,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement to any such person except as otherwise contemplated by this Agreement or agreement the transactions contemplated hereby, other than normal course of business salary increases in connection with any employee, officer, director ongoing yearly reviews or stockholderpromotions (none of which exceeds 10% of the previous year's salary);
(i) acquisition, sale, lease, license sale or other disposition transfer of any of the assets asset of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity (other than expense advances to employees, all of which are immaterial in any amount and are issued in the normal course of business), incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by the Company;
(q) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on materially impair the Company;
(o) any agreement, contract, lease 's business or commitment or any extension or modification the value of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)such business; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Stock Acquisition Agreement (Scientific Technologies Inc)
No Changes. Except as contemplated by this Agreementset forth on Schedule 3.6, since the date Balance Sheet Date there has been no material adverse change in the business, operations, properties, assets, contractual relationships or condition of the Interim Balance SheetCompany, the Company has conducted the Business only in the ordinary course and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assetsfinancial condition, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate liabilities of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(pb) hiring ofany material damage or destruction to or loss of any asset of the Company, whether or not covered by insurance;
(c) any commitment by the Company to provide benefits payable to or for the benefit of any employee of the Company upon the occurrence of a change in control or to pay a deal bonus to any employee of the Company;
(d) any material increase in the salary, wage or bonus payable by the Company to any employee of the Company;
(e) any change in any method of accounting;
(f) any sale or other disposition of assets or operations identifiable with a product line of the Company, or offer any acquisition of employment toanother business, whether through the purchase of assets, stock or otherwise, except in the ordinary course of business;
(g) any sale, lease or other disposition of any material assets of the Company (other than inventory in the ordinary course of business), or any condemnation or expropriation or other taking of any assets of the Company, or known threat thereof, by any Governmental Authority;
(h) any issuance, sale or disposition of capital stock or any other securities or grant of any option, warrant or other right to subscribe for or purchase any capital stock or any other securities of the Company;
(i) any declaration or payment of any dividend or distribution with respect to the capital stock of the Company or any redemption, purchase or acquisition of the capital stock of the Company;
(j) any write-offs, write-downs or write-ups of the value of any of the inventory or other assets of the Company;
(k) any mortgage or pledge of any material assets of the Company, except for Permitted Encumbrances or arising in the ordinary course of business;
(l) any creation or assumption of any Indebtedness, except for Indebtedness incurred in the ordinary course of business or pursuant to Contracts disclosed on Schedule 3.6, entered into in the ordinary course of business;
(m) any guarantee of any liability (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business and except for the endorsement of negotiable instruments by the Company in the ordinary course of business;
(n) any Tax election made, any employees (Tax liability settled or if an offer was accepted people that would become employees)compromised, or any waiver or extension of the statute of limitations with respect to any Taxes; or
(qo) negotiation any agreement or agreement by the Company or any officer or employees thereof commitment to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (United States Lime & Minerals Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Charter Documents or Bylaws of other organizational documents other than the CompanyCharter Amendment contemplated by this Agreement;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 100,000 individually or $50,000 200,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any Liabilities of the Company, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(ef) employment dispute, including, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) material change increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement to any such person other than in the ordinary course of business consistent with any employee, officer, director or stockholderpast practices;
(il) acquisitionContract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company to any Personperson or entity, or purchase by the Company of any debt securities of any person or entity except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice;
(lp) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mq) commencement or settlement of any Action by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit Action or judicial proceeding or administrative proceeding other investigation against or investigation of the Company or its affairs, including or any reasonable basis for any of the Projectforegoing;
(nr) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ow) lease, license, sublease or other occupancy of any agreement, contract, lease or commitment or any extension or modification Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Disclosure Schedule; or
(qx) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pw) of this Section 2.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Part 2.8 of the Skipping Stone Disclosure Schedule, since the date of the Interim Balance SheetDecember 31, 2003, there has not been, occurred or arisen any:
(a) transaction by the Company Skipping Stone or any of its subsidiaries except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of Skipping Stone or the Companycomparable governing documents of any of its subsidiaries;
(c) capital expenditure or commitment by the Company Skipping Stone or any of its subsidiaries in excess of $10,000 individually 50,000 in any individual case or $50,000 100,000 in the aggregate;
(d) destruction ofpayment, damage to discharge or loss satisfaction, in any amount in excess of $25,000 in any one case, or $50,000 in the aggregate, of any material assetsclaim, business liability or customer of the Company obligation (whether absolute, accrued, asserted or not covered by insuranceunasserted, contingent or otherwise), including other than (i) the Propertypayment, discharge or satisfaction of liabilities made in the ordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices, (ii) reflected or reserved against in the Unaudited Balance Sheet or (iii) pursuant to Section 5.5 or 5.11;
(e) material loss, damage or destruction to, or any material interruption in the use of, any of Skipping Stone's or any of its subsidiaries' respective material assets;
(f) claim of wrongful discharge or other unlawful labor practice or action with respect to Skipping Stone or any of its subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) utilized by the CompanySkipping Stone or any of its subsidiaries;
(fh) revaluation by the Company Skipping Stone of any of its assets, including the Propertyor any of its subsidiaries' respective assets (whether tangible or intangible);
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the Skipping Stone Common Stock, or any direct or indirect redemption, purchase or other acquisition by Skipping Stone of any of its capital stock or any split, combination or reclassification in respect of the Companyany shares of Skipping Stone Common Stock, or any issuance or authorization of any issuance of any other securities in lieu of or in substitution for shares of Skipping Stone Common Stock, other than pursuant to Section 5.11 or Section 5.19;
(hj) material change other than periodic increases in compensation in the ordinary course and consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices, increase above historic levels in the salary or other compensation or benefits (including, but not limited to, options or other equity-based compensation awards) payable or to become payable by Skipping Stone or any of its subsidiaries to any of their respective officers, directors, employees or consultants, or, except as contemplated in Section 5.11, the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with benefits (including, but not limited to, options or other equity-based compensation awards) to any employee, officer, director or stockholder;such person.
(ik) acquisition, sale, lease, license or other disposition of any of the material assets or properties of the CompanySkipping Stone or any of its subsidiaries, or any the creation of any security interest in such assets or properties, including other than agreements with customers and suppliers entered into in the Propertyordinary course of business and consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices;
(jl) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company Skipping Stone or any of its subsidiaries is a party or by which it is bound, including any purchase and sale agreements for lots bound other than in accordance with the Projectterms thereof;
(km) loan by the Company Skipping Stone or any of its subsidiaries to any Personperson or entity, incurring by the Company Skipping Stone or any of its subsidiaries of any indebtedness, guaranteeing by the Company Skipping Stone or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company Skipping Stone or any of its subsidiaries or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices;
(ln) waiver or release of any right or claim of the CompanySkipping Stone or any of its subsidiaries, including any write-off or other compromise of any account receivable of Skipping Stone or any of its subsidiaries, other than in the Companyordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practice;
(mo) commencement commencement, settlement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against against, or investigation of, Skipping Stone or any of its subsidiaries or their respective affairs or any reasonable basis for any of the Company or its affairs, including the Projectforegoing;
(np) notice of any claim of ownership by a third party of Skipping Stone Intellectual Property (as defined in Section 2.11) or of infringement by Skipping Stone or any of its subsidiaries of any Skipping Stone Third-Party Intellectual Property (as defined in Section 2.11);
(q) issuance or sale, or contract to issue or sell, by Skipping Stone of any shares of Skipping Stone Common Stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, other than pursuant to the exercise of any options to purchase Skipping Stone Common Stock outstanding on the date hereof and granted under Skipping Stone Option Plan;
(r) material change in pricing or royalties set or charged by Skipping Stone or any of its subsidiaries to its customers or licensees or material change in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.11) to Skipping Stone or any of its subsidiaries;
(s) commitment to any person to (i) develop software without charge or (ii) incorporate any software into any of Skipping Stone's products;
(t) exclusive license, distribution, marketing or sales agreement entered into or any agreement to enter into any exclusive license, distribution, marketing or sales agreement, other than in the ordinary course of business consistent with past practice;
(u) event or condition of any character that has or could reasonably be reasonably expected to have a material adverse impact on the CompanyMaterial Adverse Effect;
(ov) any new or changed material tax election or tax accounting method, closing agreement, contractsettlement of any claim or assessment in respect of Taxes, lease or commitment or any extension or modification waiver of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation limitation period applicable to any affiliate claim or assessment in respect of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Taxes; or
(qw) negotiation or agreement by the Company Skipping Stone or any officer of its subsidiaries or any of their respective officers or employees thereof to do any of the things described in the preceding clauses (a) through (pv) (other than negotiations with Monaco or Buyer Parent and their its affiliates and representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on Section 2.6 of the Company ---------- Disclosure Schedule, since the date of the Interim Balance SheetSeptember 30, 2000 there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of that has exceeded $10,000 individually or $50,000 25,000 in the aggregate;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance);
(d) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which the Company is aware or other unlawful labor practice or action; Section 2.6(d) of the Company Disclosure Schedule includes a list of all employees who have been terminated by the Company since January 1, including the Property2000;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including assets other than depreciation as required by GAAP and reflected on the PropertySeptember Balance Sheet;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution (whether in cash, stock or property) in respect of any of the Company Common Stock, or any split, combination or reclassification of any of the Company Common Stock or the issuance or authorization of the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company Common Stock, or the repurchase, redemption or other distribution with respect to the capital stock acquisition, directly or indirectly, of any shares of the CompanyCompany Common Stock (or options, warrants, or other rights exercisable therefor);
(h) material change any increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement to any such person, or agreement with any employee, officer, director grants of options or stockholderother employee stock awards;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness;
(j) amendment or termination or violation of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots or they are bound other than termination by the Company pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any material write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or or, to the knowledge of the Company, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.10 below), or to the knowledge of the Company, of infringement by the Company of any third party's Intellectual Property rights;
(o) issuance, sale or exchange by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other securities;
(p) change in pricing or royalties set or charged by the Company;
(q) any event or condition of any character that has had or could be is reasonably expected likely to have a material an effect that is materially adverse impact on to the condition (financial or otherwise), properties, assets, liabilities, business, operating, results of operations or, to the Company;
(o) any agreement's knowledge, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate prospects of the Company other than in the ordinary course of business taken as conducted on that date and consistent with past practices, a whole (a "Material Adverse Effect"); or (iv) involves the sale of, lease of or transfer of any interest in any material assets;-----------------------
(pr) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company Company, or any officer of its officers or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than by negotiations with Monaco or Buyer ▇▇▇▇▇▇ and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Stock Purchase Agreement (Somera Communications Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, ---------- occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company Company, or the loss of any material customers or material amounts of business (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company Agreement --------- which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, except to the extent properly reserved on the Balance Sheet;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except Since the Balance Sheet Date, except as contemplated expressly permitted under, required or specifically consented to by this AgreementParent pursuant to Article V, since the date Company and each of its Subsidiaries has conducted its business in the Interim Balance Sheet, ordinary course consistent with past practices and there has not been, occurred or arisen any:
(a) transaction by modifications, amendments or changes to the Company except Charter Documents;
(b) payment, discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business as conducted on or with respect to liabilities reflected or reserved against in the date of the Interim Current Balance Sheet and consistent or with past practices;
(b) amendments or changes respect to liabilities incurred in the Articles ordinary course of Incorporation or Bylaws of business since the CompanyBalance Sheet Date;
(c) expenditure expenditure, transaction or commitment by the Company in excess of exceeding $10,000 50,000 individually or $50,000 100,000 in the aggregate, excluding the fulfillment of Permitted Purchase Orders;
(d) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer intangible) of the Company or any of its Subsidiaries (whether or not covered by insurance), including ) or the Propertyloss of any material customer;
(e) material employment dispute, including claims or matters raised by any individual, Governmental Entity, works council, employee or workers’ representatives, group of employees, bargaining unit, union or other labor organization, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fg) adoption of or change in any election or accounting method in respect of Taxes, any entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, or any agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(h) revaluation by the Company or any of its Subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable, for accounting purposes;
(gi) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Company;
any shares of Company Capital Stock (h) material change in any compensation arrangement or agreement with any employeeoptions, officerwarrants or other rights convertible into, director exercisable or stockholderexchangeable therefor);
(i) acquisitionexcept as reflected in the Compensation Schedule, increase in or decrease in or other change to the salary, wage rates, bonuses or fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries (with the exception of payments contemplated by this Agreement) of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees, other than the Specified Bonuses and Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee other than the Specified Bonuses or Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time;
(k) any termination, extension, amendment or modification of the terms of any material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of its assets are bound;
(l) sale, lease, license or other disposition of any material assets (whether tangible or intangible) or properties of the assets Company or any of its Subsidiaries (other than in the ordinary course of business), including the sale of any accounts receivable of the CompanyCompany or any of its Subsidiaries, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practices), or forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) incurring by the Company or any of its Subsidiaries of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, or the issuance or sale of any debt securities of the Company or guaranteeing by the Company any of any debt securities of othersits Subsidiaries;
(lo) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or any of its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsSubsidiaries;
(p) hiring issuance, grant, delivery, sale or purchase of, or offer proposal or Contract to issue, grant, deliver, sell or purchase by the Company, of employment to(i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or (ii) any employees (subscriptions, warrants, options, rights or if an offer was accepted people that would become employees); orsecurities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(q) negotiation change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed any Third Party IP Assets to the Company or any of its Subsidiaries;
(r) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property Assets, other than any Contract that is disclosed in Section 3.13(a) of the Disclosure Schedule;
(s) a Company Material Adverse Effect;
(t) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(u) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any officer of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company’s business;
(v) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other agreement with any works council, union, employee or workers’ representatives, group of employees thereof or other labor organization, except as required by applicable Law;
(w) increase in the rights to indemnification of any Employees;
(x) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or authorizing any cash or equity exchange for any options granted under any of such plans other than the Unvested Option Cashout;
(y) execution, termination or amendment of any Employee Agreement (other than as contemplated by this Agreement or the execution of the Company standard at will offer letter (or any standard employment agreement of any Subsidiary as required by Law), the form of which has been made available to Parent) with any Employee providing for annual base compensation in excess of $125,000;
(z) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(aa) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards;
(bb) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any employee;
(cc) alteration of any interest of the Company in any of its Subsidiaries or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of any insurance policy of the Company or any of its Subsidiaries;
(ee) issuance, or agreement to issue, any refunds, credits, allowances or other concessions to customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries in excess of $25,000 individually or $100,000 in the aggregate; or
(ff) agreement by the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (pee) of this Section 3.8 (other than negotiations and agreements with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.8, since the date of the Interim Balance SheetDecember 31, ---------- 1999 there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually in any individual case or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its material assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock other than the redemption of Company Common Stock from terminated employees of the Company at the original sales price pursuant to the terms of the agreements pursuant to which such Company Common Stock was issued and sold;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement since December 31, 1999;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound except in the Projectordinary course of business;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany except in the ordinary course of business;
(mn) to the Company's knowledge, commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.12 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock since December 31, 1999;
(q) issuance or sale by the Company of any securities exchangeable, convertible or exercisable for Company Common Stock, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees except in the ordinary course of business or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(s) any sale, assignment, or transfer or any patents, trademarks, copyrights, trade secretes, or other intangible assets;
(t) any resignation or termination of employment of any key employee of the Company; and the Company does not know of the impending resignation or termination of employment or any such key employee; or
(u) receipt of notice that there has been a loss of, or order cancellation by, any major customer of the Company;
(v) event or condition of any character that has had or could reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qw) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Acquiror and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Context Integration Inc)
No Changes. Except as contemplated by this Agreementset forth on SCHEDULE 3.8, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or unsatisfied commitment by the Company in excess of Company, either individually exceeding $10,000 individually 5,000 or $50,000 in the aggregateaggregate exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not by covered by insurance), including the Property;
(e) change in accounting methods labor dispute or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) resignation or termination of any key officers or employees of the Company, and to its knowledge, the Company does not know of the impending resignation or termination of employment of any such officer or employee;
(g) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderCompany Stock;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity, incurring incurrence by the Company of any indebtedness, guaranteeing guarantee by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company guarantee of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property Rights or of infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by persons who have licensed Company Intellectual Property rights to the Company;
(q) event or condition of any character that has had or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Merger (North American Scientific Inc)
No Changes. Except as expressly contemplated by this AgreementAgreement and other than as set forth in Section 2.10 of the Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles amendment of Incorporation or Bylaws any term of any outstanding security of the CompanyCompany or any of its Subsidiaries;
(c) expenditure capital expenditure, transaction or commitment by the Company in excess or any of its Subsidiaries exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $25,000 in any one case, or $100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges, waivers or satisfactions in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(ef) material employment dispute, including but not limited to, claims or matters raised in writing by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fh) revaluation by the Company of or any of its assetsSubsidiaries of any assets (whether tangible or intangible), including without limitation, writing down the Property;
(g) declaration, setting aside value of inventory or payment of a dividend writing off notes or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderaccounts receivable;
(i) acquisitionagreement, salecontract, covenant, instrument, lease, license or commitment, other disposition of any of than in the assets of the Companyordinary course, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company or any of its Subsidiaries is a party or by which it is boundor any of its assets (whether tangible or intangible) are bound or any termination, including extension, amendment or modification of the terms of any purchase and sale agreements for lots agreement, contract, covenant, instrument, lease, license or commitment, other than in the Projectordinary course, to which the Company or any of its Subsidiaries is a party or by which it or any of its assets are bound;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lj) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-write off or other compromise of any account receivable of the Company, other than in the ordinary course of business;
(k) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company in or to the Company Intellectual Property or of infringement by the Company of any other Person’s Intellectual Property;
(l) agreement or modification to any Contract pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(m) commencement or notice or threat event, occurrence, development, state of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairscircumstances, including the Project;
(n) any event facts, or condition of any character that has had or could would reasonably be reasonably expected to have have, individually or in the aggregate, a material adverse impact on Company Material Adverse Effect;
(n) acquisition or agreement to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the Company;aggregate, to the business of the Company and its Subsidiaries; and
(o) any agreementother transaction, contractevent or occurrence that, lease or commitment or any extension or modification were the same to occur between the date of this Agreement and the terms Closing Date, would be a violation of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Section 4.1.
Appears in 1 contract
Sources: Merger Agreement (Pegasystems Inc)
No Changes. Except as contemplated by this Agreementset forth in Section 2.6 of the Disclosure Schedule, since the Balance Sheet Date through and including the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction amendment or change to the Company Charter Documents;
(b) capital expenditure or capital commitment by the Company in any amount in excess of $100,000 in any individual case or $500,000 in the aggregate or acquisition of any Person or other business enterprise or division thereof (whether by merger, consolidation, sale of stock, sale of assets or otherwise) or acquisition or any material assets except for acquisitions of inventory in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure payment, discharge or commitment by the Company satisfaction, in any amount in excess of $10,000 individually 100,000 in any individual case or $50,000 500,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business and consistent with past practices;
(d) destruction of, damage to or loss of any material assets, business properties or customer assets of the Company having a fair market value in excess of $100,000 (whether or not covered by insurance), including or non-renewal of any agreement between the PropertyCompany and any Large Reseller, Top Vendor or Top Payor;
(e) work stoppage, labor strike or other comparable labor trouble, or any material action, suit, claim, demand, or labor dispute relating to any labor, employment and/or safety matter involving the Company, including material charges of wrongful dismissal or discharge, discrimination, wage and hour violations, or other material unlawful labor and/or employment practices or actions;
(f) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) material revaluation by the Company of any of its their assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock writing down of the Companyvalue of inventory or writing off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices;
(h) material change dividend, split, combination or reclassification of any securities of the Company, or issuance or authorization of the issuance of any securities of the Company or any rights of security holders of the Company in respect of, in lieu of or in substitution for, any compensation arrangement or agreement with any employee, officer, director or stockholderof the foregoing;
(i) acquisition(i) repricing of any right to acquire securities of the Company or any amendment or acceleration or waiver of any vesting terms related to any award of, or award with respect to, any securities of the Company held by any employees, consultants, contractors, or advisors of the Company or (ii) declaration, payment, commitment, approval of, or undertaking of an obligation of any other kind for the payment by the Company of a bonus, commission or other additional salary, compensation or employee benefits to any such Person (including under any profit sharing, management by objectives, incentive, gainsharing, competency or performance plan) not reserved for on the Interim Balance Sheet;
(j) employee terminations which would constitute a “plant closing” or “mass layoff” within the meaning of the Worker Adjustment and Retraining Notification (“WARN”) Act;
(k) granting of material severance or termination or other pay or benefits to any employee, consultant or contractor or entering into any Contract with respect thereto; or adoption or amendment of any employee benefit plan, Benefit Plan or severance plan;
(l) sale, lease, license or other disposition of any assets or properties of the assets of the Company, Company or any creation of any security interest in Lien on such assets or properties, including except sales or non-exclusive licenses of Company Products in the Propertyordinary course of business and consistent with prior practices and in each case, other than as would not reasonably be expected to be material to the Company taken as a whole;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Person, incurring incurrence by the Company of any indebtednessmaterial Indebtedness, guaranteeing draw-down of, increase in, repayment of, or amendment of the terms of any material Indebtedness, guarantee by the Company of any indebtednessmaterial Indebtedness, issuance or sale of any debt securities of the Company or purchase of or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business and consistent with prior practices;
(ln) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any material account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past prior practices;
(o) commencement or written notice of commencement by any Governmental Authority of any lawsuit, claim or proceeding against, investigation by any Governmental Authority of the Company or their affairs, or (iv) involves the sale of, lease of or transfer commencement of any interest in litigation by the Company, or settlement of any material assetslawsuit, claim, proceeding or investigation (regardless of the party initiating the same);
(p) hiring (i) transfer or sale by the Company to any third Person of any Company Intellectual Property or the entering into of any license agreement, distribution or reseller agreement, security agreement, assignment or other conveyance, or option for any of the foregoing, with respect to the Company Intellectual Property with any Third Person, (ii) purchase or other acquisition from a third Person of ownership in any Intellectual Property or technology, or the entering into of any license agreement, distribution agreement, reseller agreement, security agreement, assignment or other conveyance, or option for any of the foregoing, with respect to the Intellectual Property or technology of any third Person (other than licenses for Open Source Software, commercially available software, or Shrink Wrap Code), (iii) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Third Persons who have licensed Intellectual Property or technology to the Company or (iv) entering into, or amendment of, any Contract with respect to the development of any material Intellectual Property or offer technology by a Third Person (other than agreements with employees) on behalf of employment tothe Company, in each case as other than as would not reasonably be expected to be material to the Company.
(q) entry into of any material Contract, or modification to any Contract, pursuant to which any Third Person was granted development, manufacturing or similar rights of any type or scope with respect to any Company Products, except in the ordinary course of business and consistent with prior practices;
(r) to the Knowledge of the Company, any employees (security breach or if an offer was accepted people that would become employees)cyber-attack against the Company or its facilities, or involving information with respect to the Company’s customers or suppliers, financial systems or information, or projections, plans or strategies; or
(qs) negotiation any event, occurrence, change, effect or agreement by the Company condition of any character that, individually or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco aggregate, has had, or Buyer and their representatives regarding the transactions contemplated by this Agreement)could reasonably be expected to have, a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Global Partner Acquisition Corp.)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, ---------- occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company Agreement --------- which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securi ties of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring of, notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or offer notice of employment to, infringement by the Company of any employees (or if an offer was accepted people that would become employees); orthird party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or may have a Material Adverse Effect on the Company or;
(t) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetFinancial Statements, there has or have not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary, which is material to the Company or such Subsidiary, except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Company Constitution or Bylaws of the CompanySubsidiary Charter Documents;
(c) capital expenditure or commitment by the Company in excess of or any Subsidiary exceeding $10,000 5,000 individually or $50,000 15,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $15,000 in the aggregate, of any claim, Liability or obligation (absolute, accrued, asserted, unasserted, contingent or otherwise), other than payment, discharge or satisfaction of claims, liabilities and obligations in the ordinary course of business or of Liabilities reflected or reserved against in the Financial Statements;
(e) destruction of, damage to to, or loss of any material assets, business assets with a book value in excess of $5,000 (whether tangible or customer intangible) of the Company (or any Subsidiary, whether or not covered by insurance), including the Property;
(ef) actual, pending or threatened claims by or on behalf of Company Personnel, including any claims relating to termination of employment, workers compensation, illness, negligence, discrimination, bullying, sexual harassment, wage, salary or superannuation claims;
(g) change in accounting methods methods, principles or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any Subsidiary, or change in the manner the Company or any Subsidiary keeps its books and records, or its practices with regard to the booking of sales, receivables, payables or accrued expenses or change in its payment or collection practices;
(fh) change in any material election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, material agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any Subsidiary of any of its assets, including the Propertytheir respective assets (whether tangible or intangible);
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor except as contemplated by this Agreement);
(hk) material change destruction of, damage to, or loss of any assets (whether tangible or intangible) of the Company or any Subsidiary with a book value in excess of $5,000 in any compensation arrangement one case or agreement with any employee$15,000 in the aggregate, officer, director whether or stockholdernot covered by insurance;
(il) acquisitionan increase in the base salary or other compensation payable or to become payable by the Company or any Subsidiary to any Company Personnel, or the promise, payment, commitment or obligation of any kind for the payment by the Company or any Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person;
(m) entering into of any material Contract to which the Company or any Subsidiary is a party or by which they or any of their respective assets (whether tangible or intangible) are bound or any termination, extension, material amendment or modification of the terms of any material Contract to which the Company or any Subsidiary is a party or by which it or any of its assets are bound;
(n) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any Subsidiary, including the sale of any accounts receivable, or any creation of any security interest in any such material assets or material properties, including the Property;
(jo) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) outstanding loan by the Company or any Subsidiary to any Person, incurring by the Company or any Subsidiary of any indebtednessIndebtedness, guaranteeing by the Company or any Subsidiary of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing by the Company of any debt securities of others, except for advances to Company Personnel for travel and business expenses in the ordinary course of business;
(lp) the granting of any waiver or release by the Company or any Subsidiary of any right or claim of material to the CompanyCompany or any Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Subsidiary;
(mq) commencement the commencement, settlement, notice or, to the Knowledge of the Company, any Subsidiary or notice or threat of commencement the Stockholders, threat, of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any Subsidiary;
(r) notice of any claim or potential claim of ownership by any Person other than the Company or any Subsidiary of the Company Intellectual Property owned, developed or created by the Company or any Subsidiary, or of any claim or potential claim of infringement by the Company or any Subsidiary of any other Person’s Intellectual Property;
(s) issuance or sale, or contract to issue or sell, by the Company or any Subsidiary of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(t) (i) sale or license by the Company or any Subsidiary of any Company Intellectual Property or execution of any agreement with respect to any Company Intellectual Property, (ii) purchase or license by the Company or any Subsidiary of any Intellectual Property or execution of any agreement with respect to the Intellectual Property of any Person, (iii) agreement by the Company or any Subsidiary with respect to the development of any Intellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company or any Subsidiary to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any Subsidiary, except in the case of clause (i) or (ii), with respect to non-exclusive end user licenses of object code in the ordinary course of business and on the Company’s or the applicable Subsidiary’s standard terms and conditions;
(u) agreement or material modification to any Contract pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or its affairs, including the Projectany Subsidiary;
(nv) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qw) negotiation or agreement by the Company or any officer Subsidiary, or employees thereof any officer, employee on behalf of the Company or any Subsidiary, to do any of the things described in the preceding clauses (a) through (pv) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
No Changes. Except as contemplated by this AgreementSince December 31, since the date of the Interim Balance Sheet, 1996 there has not been, ---------- occurred or arisen any:
(a) transaction by the Company or its subsidiaries except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of or its subsidiaries that has exceeded $10,000 25,000 individually or $50,000 in the aggregate;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company or its subsidiaries (whether or not covered by insurance);
(d) labor trouble or claim of wrongful discharge of which the Company or its subsidiaries has received written notice or of which the Company is aware or other unlawful labor practice or action; Section 2.6(d) of the Company Disclosure Schedule includes a list of all employees who have been terminated by the Company since January 1, including the Property1995;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including assets other than depreciation as required by GAAP and reflected on the PropertyMarch Balance Sheet;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution (whether in cash, stock or property) in respect of any of the Company Capital Stock, or any split, combination or reclassification of any of the Company Capital Stock or the issuance or authorization of the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company Capital Stock, or the repurchase, redemption or other distribution with respect to the capital stock acquisition, directly or indirectly, of any shares of the Company;Company Capital Stock (or options, warrants, or other rights exercisable therefor).
(h) material change increase of over 10% in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement to any such person, or agreement with any employee, officer, director grants of options or stockholder;other employee stock awards representing more than 20,000 shares in the aggregate or otherwise not in the ordinary course of business except as otherwise contemplated by this Agreement.
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation of any security interest its subsidiaries, except in such assets or properties, including the Propertyordinary course of business;
(j) amendment or termination or violation of any material contract, agreement, permit, approval agreement or license to which the Company or any of its subsidiaries is a party or by which it is bound, including any purchase and sale agreements for lots or they are bound other than termination by the Company or such subsidiary pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company or any of its subsidiaries to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company or any of its subsidiaries of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the CompanyCompany or any of its subsidiaries, including any material write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or, to the knowledge of the Company or its subsidiaries, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or any of its subsidiaries or their affairs, including the Project;
(n) claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.10 below), or to the knowledge of the Company, of infringement by the Company or any of its subsidiaries of any third party's Intellectual Property rights;
(o) issuance, sale or exemption by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other securities except for issuances or sales as a result of exercises of outstanding stock options granted under the Plan or other rights previously granted to purchase shares of the Company Capital Stock, provided that such options and other rights are included among the options and rights specified in paragraph 2.2(b) above;
(p) change in pricing or royalties set or charged by the Company;
(q) any event or condition of any character that has had or could be is reasonably expected likely to have a material an effect that is materially adverse impact on to the condition (financial or otherwise), properties, assets, liabilities, business, operating, results of operations or, to the Company;
(o) any agreement's knowledge, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate prospects of the Company other than in the ordinary course of business and its subsidiaries taken as conducted on that date and consistent with past practices, a whole (a "Material Adverse Effect"); or (iv) involves the sale of, lease of or transfer of any interest in any material assets;-----------------------
(pr) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company Company, any of its subsidiaries or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than by negotiations with Monaco or Buyer Splash and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Current Balance Sheet, and except as expressly permitted by Section 5.1 hereof, there has or have not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries, which is material to the Company and its Subsidiaries taken as a whole, except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Company Charter Documents or Bylaws of the CompanySubsidiary Charter Documents;
(c) capital expenditure or commitment by the Company in excess or any of its Subsidiaries exceeding $10,000 individually or $50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $50,000 in the aggregate, of any claim or Liability, other than payment, discharge or satisfaction of claims, Liabilities and obligations in the ordinary course of business or of Liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer intangible) of the Company (or any of its Subsidiaries with a book value in excess of $10,000 in any one case or $50,000 in the aggregate, whether or not covered by insurance), including the Property;
(ef) labor disputes or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its Subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fh) change by the Company or any of its Subsidiaries in any written election in respect of Taxes, adoption or change by the Company or any of its Subsidiaries in any accounting method which would alter the historic treatment of an item on a Return, amendment to any Return, agreement or settlement by the Company or any of its Subsidiaries of any claim or assessment in respect of any Taxes, or extension or waiver by the Company or any of its Subsidiaries of the limitation period applicable to any claim or assessment in respect of any Taxes;
(i) revaluation by the Company of any of its assets, including the Propertyor its Subsidiaries’ assets (whether tangible or intangible);
(gj) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or any stock or securities of its Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or any stock or securities in its Subsidiaries, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or any stock or securities in its Subsidiaries, or any direct or indirect repurchase, redemption or other acquisition by the Company of any shares of Company Capital Stock or any stock or securities in its Subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Companyagreements evidencing Company Options and Company Restricted Stock;
(hk) a material change increase in the base salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any Company Personnel, or the declaration, payment, commitment or obligation of any kind for the payment by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or material compensation arrangement to any such person, except payroll and fees to employees and consultants in the ordinary course of business and in accordance with existing compensation or agreement with any employee, officer, director or stockholdersimilar plans;
(il) acquisitionentering into of any Contract to which the Company or any of its Subsidiaries is a party or by which they or any of their assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any Contract to which the Company or any of its Subsidiaries is a party or by which they or any of their assets are bound, except in the ordinary course of business and consistent with past practices;
(m) sale, lease, license (except for non-exclusive licenses of the Company Products in the ordinary course of business) or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any of its Subsidiaries taken as a whole, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in any such assets or properties, including the Property;
(jn) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) outstanding loan by the Company or any of its Subsidiaries to any Personperson or entity, incurring by the Company or any of its Subsidiaries of any indebtednessIndebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for advances to Company Personnel for travel and business expenses in the ordinary course of business;
(lo) the granting of any waiver or release by the Company or any of its Subsidiaries of any right or claim of the Companyclaim, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mp) commencement or the commencement, settlement, notice or threat or, to the Knowledge of commencement the Company, threat, of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries;
(q) notice of any claim or potential claim of ownership by any person other than the Company or any of its Subsidiaries of the intellectual property owned, developed or created by the Company or any of its Subsidiaries, or of any claim or potential claim of infringement by the Company or any of its Subsidiaries of any other person’s intellectual property;
(r) issuance or sale, or contract to issue or sell, by the Company or any of its Subsidiaries of any shares of Company Capital Stock or any stock or securities in its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock or securities in its Subsidiaries, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock or any stock or securities in its Subsidiaries upon the exercise thereof;
(s) (i) sale or license by the Company or any of its Subsidiaries of any Company Intellectual Property or execution of any agreement with respect to any Company Intellectual Property, (ii) purchase or license by the Company or any of its Subsidiaries of any Intellectual Property or execution of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement by the Company or any of its Subsidiaries with respect to the development of any Intellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, except, in each case, in the ordinary course of business and consistent with past practices;
(t) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any of its affairs, including the ProjectSubsidiaries;
(nu) any event or condition of any character that has had or could would reasonably be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qv) negotiation or agreement by the Company or any of its Subsidiaries, or any officer or employees thereof employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pu) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on Section 2.24 to the Seller Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or the Company Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) individual capital expenditure or commitment by the Company in excess of or the Company Subsidiary exceeding $10,000 individually or $50,000 in the aggregate10,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company or the Company Subsidiary (whether or not covered by insurance), including ;
(d) labor dispute or claim of wrongful discharge of which the PropertyCompany or the Company Subsidiary has received written notice or of which the Company or the Company Subsidiary is aware or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or the Company Subsidiary;
(f) revaluation by the Company or the Company Subsidiary of any of its assets, including assets other than depreciation as reflected in the Propertybalance sheet in Section 2.10 of the Seller Disclosure Schedule;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of the Company or the Company Subsidiary’s capital stock of the Companyor equity interest, or any split, combination or reclassification;
(h) material change increase in the salary or other compensation payable or to become payable by the Company or the Company Subsidiary to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company or the Company Subsidiary, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(i) acquisition, sale, lease, license or other disposition of any of the material assets or properties of the CompanyCompany or the Company Subsidiary, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) material amendment or, to the knowledge of the Company or the Company Subsidiary, any termination or violation of any Contract other than amendment or termination of any material contract, agreement, permit, approval or license to which by the Company is a party or by which it is bound, including any purchase and sale agreements for lots the Company Subsidiary pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company or the Company Subsidiary to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company or the Company Subsidiary of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company or the Company Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company Subsidiary or guaranteeing of any debt securities of others;
(l) waiver or release of any material right or claim of the CompanyCompany or the Company Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or the Company Subsidiary;
(m) commencement delay or notice or threat postponement of commencement the payment of any lawsuit accounts payable or judicial commissions or administrative proceeding against any other liability or investigation agreement or negotiation with any party to extend the payment of any accounts payable or commissions or any other liability or acceleration of the Company collection of (or its affairs, including the Projectdiscounted) any accounts or notes receivable;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;Company or the Company Subsidiary; and
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or the Company Subsidiary or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pn) (other than by negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by set forth in Part 2.7 of the Company Disclosure Letter or with respect to actions or agreements between the Company and Parent as set forth in this Agreement, since the date of the Interim Current Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course Ordinary Course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the Ordinary Course of any security interest in such assets or properties, including the PropertyBusiness as conducted on that date;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to or capital investment in any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtednessindebtedness (other than endorsements of instruments for collection in the Ordinary Course of Business), issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the Ordinary Course of Business;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice or threat of commencement sale by the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification other of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsits securities;
(p) hiring of, change in pricing or offer of employment to, any employees royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(q) negotiation agreement or agreement authorization or, to the Company's or the Principal Stockholder's Knowledge, negotiations by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tibco Software Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants;
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any 13PAGE Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheet and current liabilities incurred since the date of the Balance Sheet in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Thermoquest Corp \De\)
No Changes. Except as contemplated by this AgreementAgreement or as set forth in Section 2.9 of the Company Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company with payments to be made by or to the Company in excess of $25,000 individually or $50,000 in the aggregate except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or the Organizational Documents of any of its Subsidiaries;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) destruction of, material damage to to, or material loss of any material assetsassets (whether tangible or intangible), or material business or customer of the Company (whether or not covered by insurance), including and the PropertyCompany has not received written notice (and the Company Officer Group has not received oral notice) from any material customer that it will stop or materially decrease its business with the Company;
(e) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers' representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fg) change in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(h) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes receivable;
(gi) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person, other than in the ordinary course of business;
(j) adoption or amendment to any Company Employee Plan, except as required by applicable law;
(k) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity;
(l) payment, discharge, waiver or satisfaction by the Company, in an amount in excess of $25,000 in any one case, or $50,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business;
(m) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Companyagreements evidencing Company Options;
(hn) material change waiver or release by the Company of any right or claim of the Company or Subsidiary, including any write-off or other compromise of any account receivable of the Company or Subsidiary in excess of any compensation arrangement or agreement with any employee, officer, director or stockholderestablished reserves for accounts receivable in the Current Balance Sheet;
(io) acquisition, sale, lease, license or expenditure of cash other disposition than in the ordinary course of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Propertybusiness;
(jp) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring incurrence by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(li) waiver sale or release license of any right Company Intellectual Property or claim execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity other than the granting of object code licenses in conjunction with the sale of the Company's products in the ordinary course of the Company's business and consistent with past practice, including any write-off or other compromise (ii) purchase or license of any account receivable Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, except in the ordinary course of business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) material change in royalties set or charged by the Company to its customers or licensees or in royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) receipt by the Company of written notice (or receipt of oral notice by the Company Officer Group) of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other person's Intellectual Property;
(s) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(mt) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ou) any agreementlease, contractlicense, lease sublease or commitment or any extension or modification of the terms other occupancy of any agreement, contract, lease or commitment which (i) involves Leased Real Property by the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Company; or
(qv) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company , to do any of the things described in the preceding clauses (a) through (pu) of this Section 2.9 (other than negotiations with Monaco or the Buyer and their its representatives regarding the transactions contemplated by this AgreementContemplated Transactions).
Appears in 1 contract