Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any: (a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (b) amendment of the charter, by-laws or other organizational documents of the Company; (c) split, combination or reclassification of any shares of its capital stock; (d) issuance, sale or other disposition of any of its capital or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock; (e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock; (f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements; (g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; (h) entry into any Contract that would constitute a Material Contract; (i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice; (j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements; (k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements; (l) material damage, destruction or loss (whether or not covered by insurance) to its property; (m) any capital investment in, or any loan to, any other Person; (n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound; (o) any material capital expenditures; (p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible; (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant; (r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business; (s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral; (t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees; (u) entry into a new line of business or abandonment or discontinuance of existing lines of business; (v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; (w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice; (x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof; (y) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or (z) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (SRAX, Inc.)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock, except as set forth in Schedule 3.08(e);
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s 's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice, except as set forth in Schedule 3.08(i);
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlementsentitlements except for such obsolete equipment as set forth in Schedule 3.08(j);
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Company Intellectual Property;
(m) damage, destruction or loss in excess of $50,000 in the aggregate (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other PersonPerson excluding loans to employees up to Five Hundred ($500) Dollars as set forth in Schedule 3.08(n);
(no) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(op) any material capital expendituresexpenditures in excess of $250,000 in the aggregate;
(pq) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(r) except as set forth in Schedule 3.08(r), (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,00010,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) except as set forth in Schedule 3.08(s) hiring or promoting any person as or to (as the case may be) an officer management level or hiring or promoting any employee below officer management level except to fill a vacancy in the ordinary course of business;
(st) except as set forth in Schedule 3.08(t) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees, except as shown in Schedules 3.08(i) and 3.08(j);
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $25,000 10,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zaa) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the CompanyCompany Charter Documents;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock (other than in connection with the exercise of Options outstanding on the date of this Agreement as required by the terms of such Options), or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s 's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the material assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements, other than non-exclusive licenses granted in the ordinary course;
(l) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any Trade Secrets included in the Company Intellectual Property;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other Person;
(no) acceleration, termination, material modification to or cancellation of any material Material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(op) any material capital expenditures;
(pq) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(r) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,00025,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan benefit plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period, except to the extent that any such action or inaction has been made by the Company at the direction of the Buyer; or
or (zaa) any Contract obligating the Company to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the an Acquired Company, any:
(a) event, occurrence occurrence, or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws laws, or other organizational documents of the an Acquired Company;
(c) split, combination combination, or reclassification of any shares of its capital stock;
(d) issuance, sale sale, or other disposition of any of its capital stock, or grant of any options, warrants warrants, or other rights to purchase or obtain (including upon conversion, exchange exchange, or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase purchase, or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the an Acquired Company’s cash management practices and its policies, practices practices, and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue revenue, and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption assumption, or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(ji) transfer, assignment, sale sale, or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(j) the write down or write off of any inventory of an Acquired Company exceeding $10,000 in the aggregate;
(k) transfer, any returns or warranty claims exceeding $75,000 in the aggregate;
(l) any express indication by a customer or supplier that it will not do further business with an Acquired Company;
(m) transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any material Company Intellectual Property or Company IP AgreementsAgreements except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice;
(ln) abandonment or lapse of or failure to maintain in full force and effect any material Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any material Trade Secrets included in the Company Intellectual Property;
(o) material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(mp) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(oq) any material capital expenditures;
(pr) imposition of any Encumbrance upon any of the Company an Acquired Company’s properties, capital stock stock, or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension pension, or other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors contractors, or consultants, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000100,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor contractor, or consultant;
(rt) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer employee, except to fill a vacancy in the ordinary course of businessbusiness consistent with past practice;
(su) adoption, modification modification, or termination of any: (i) employment, severance, retention retention, or other agreement with any current or former employee, officer, director, independent contractor contractor, or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tv) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders shareholders or current or former directors, officers and officers, or employees;
(uw) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vx) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation liquidation, or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wy) any disruption, interruption, or reduction in the business of an Acquired Company arising out of COVID-19 or any COVID-19 Measures;
(z) purchase, lease lease, or other acquisition of the right to own, use use, or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xaa) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(ybb) action by the an Acquired Company to make, change change, or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action action, or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zcc) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Motion Technologies Inc)
Absence of Certain Changes, Events and Conditions. Except as expressly contemplated by the Agreement or as set forth in on Section 3.08 4.07 of the Company Disclosure Schedules, since from the Balance Sheet DateDate until the date of this Agreement, and other than the Company has operated in the ordinary course of business consistent with past practice, in all material respects and there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, had a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or applicable Law or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(nj) acceleration, termination, material modification to or cancellation of any material Material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(ok) excluding borrowing from Company’s lenders in accordance with any material capital expendituresMaterial Contract, incurrence, assumption or guarantee of any indebtedness for borrowed money in an aggregate amount exceeding $250,000, except unsecured current obligations and liabilities incurred in the ordinary course of business;
(pl) imposition sale or other disposition of any Encumbrance upon any of the Company propertiesassets shown or reflected on the Balance Sheet, capital stock except both in the ordinary course of business and having an aggregate value of less than $250,000, or assetscancellation of any debts or entitlements, tangible or intangibleother than in the ordinary course of business;
(im) sale, transfer, assignment or grant of any bonuses, whether monetary license or otherwise, or sublicense of any material rights under any Company Intellectual Property;
(n) increase in any wages, salary, severance, pension or other the compensation or and/or benefits in respect of provided to its current or former employees, officers, directors, independent contractors or consultantsEmployees, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(so) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wp) purchasedamage, lease destruction or other acquisition of the right loss (whether or not covered by insurance) to own, use or lease any its property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), 250,000 except for purchases of inventory or supplies in the ordinary course of business consistent with past practicewear and tear;
(xq) acquisition by merger change in method of Tax accounting; making, changing or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(y) action by the Company to make, change or rescind revoking any Tax election, amend any Tax Return election or take any position on any Tax Return, take any action, omit to take any action or enter entering into any other transaction that would have the effect of increasing the Tax liability agreement or reducing any Tax asset of Buyer in arrangement with respect of any Post-Closing Tax Periodto Taxes; or
(zr) any Contract agreement to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of Since the Company Disclosure Schedules, since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents Organizational Documents of the Company;
(c) split, combination or reclassification of any shares of its capital stockmembership interests in the Company;
(d) issuance, sale or other disposition of, or creation of any of its capital Encumbrance on, any membership interests in the Company, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stockmembership interests in the Company;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock membership interests in the Company or redemption, purchase or acquisition of its capital stockany of the Company’s outstanding membership interests;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(y) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(z) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Multimedia Platforms Inc.)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(b) amendment of the charter, by-laws Partnership Certificate or other organizational documents Partnership Agreement of the Company;
(c) split, combination or reclassification of any shares of its capital stockequity interests;
(d) issuance, sale or other disposition of any of its capital equity interests, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stockequity interests;
(e) other than the Capital Distribution and tax distributions, any declaration or payment of any dividends or distributions on or in respect of any of its capital stock equity interests or redemption, purchase or acquisition of its capital stockequity interests;
(f) material change in any method of financial reporting, accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statementsother applicable Law;
(g) any material change in internal accounting controls or procedures;
(h) change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness Indebtedness for borrowed money except unsecured current obligations and Liabilities liabilities incurred in the ordinary course Ordinary Course of business consistent with past practiceBusiness;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in on the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its the Company’ property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock Partnership Interests or assets, tangible or intangible;
(q) (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors partners or consultants, employees other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment or status for any partner or employee or any termination of any employees or partners for which the aggregate costs and expenses exceed $1,00050,000 individually or $150,000 in the aggregate, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any of its current or former employee, officer, director, independent contractor partners or consultantemployees;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course Ordinary Course of businessBusiness;
(s) election or appointment of a partner of the Company, or any promise to elect or appoint any Person as a partner of the Company;
(t) adoption, modification (except as required by law) or termination of any: (i) employment, severance, retention retention, deferred compensation or other agreement with any of its current or former employee, officer, director, independent contractor partners or consultant, employees; or (ii) Benefit Plan or (iii) collective bargaining or other agreement with a UnionPlan, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders the Sellers or the Company’s current or former directors, officers and partners or employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $25,000 150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies securities in the ordinary course Ordinary Course of business consistent with past practiceBusiness;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, file any income Tax Return of the Company or amend any Tax Return Return;
(aa) commence, settle, or take offer or propose to commence or settle (i) any position on litigation, investigation, arbitration, proceeding or other claim involving or against the Company, (ii) any Tax Returnlitigation, take arbitration, proceeding or other claim with any actionSeller involving or against the Company or its partners or (iii) any litigation, omit arbitration, proceeding or other claim that relates to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Periodtransactions contemplated hereby; or
(zbb) any Contract to do any of the foregoing, or any action or omission that would reasonably be expected to result in any of the foregoing.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Intl Fcstone Inc.)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practicepractice or as set forth in Section 3.07 of the Disclosure Schedules, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any material Company Intellectual Property except non-exclusive licenses or Company IP Agreementssublicenses granted in the ordinary course of business consistent with past practice;
(l) abandonment or lapse of or failure to maintain in full force and effect any material Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any material Trade Secrets included in the Company Intellectual Property;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other Person;
(no) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(op) any material capital expenditures;
(pq) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(r) other than with respect to annual merit increases effective as of July 1, 2019, in amounts agreed to by Buyer and the Company: (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,00025,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders shareholders or current or former directors, officers and employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,0005,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, change any accounting method or Tax reporting policy or procedure, settle or compromise any tax liability, agree to any extension of the statute of limitations in connection with any action related to Taxes, fail to file any Tax Return when due or fail to cause such Tax Returns when filed to be complete and accurate in all respects, fail to pay any amount of Taxes when due, or take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zaa) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, except as set forth in Disclosure Schedule 3.08 or otherwise as expressly permitted in this Agreement, there has not been, with respect to the CompanyCompany Parties, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, had a Material Adverse Effect;
(b) amendment of the charterOperating Agreement, by-laws articles of organization or other organizational documents of the Companyany Company Party;
(c) split, combination or reclassification of any shares of its capital stockmembership interests;
(d) issuance, sale or other disposition of any of its capital membership interest, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stockmembership interest;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock membership interest or redemption, purchase or acquisition of its capital stockmembership interest, provided, however, that the Company and the California Company may (i) continue to make regularly scheduled tax distributions to its members in accordance with past practice and (ii) make cash distributions to their members in accordance with the governing documents of the Company and the California Company, as applicable;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP IFRS or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract, except for the Cannabiotix Acquisition Agreement and any agreements related thereto, including those listed on Schedule 3.08(h);
(i) incurrence, assumption or guarantee of any indebtedness in an aggregate amount exceeding $10,000 for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements, except in the ordinary course of business;
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements, except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice;
(l) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or loss of confidentiality or value of any material Trade Secrets included in the Company Intellectual Property by failure to take or maintain reasonable secrecy measures to protect the same;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) other than in respect of the Subsidiaries, any capital investment in, or any loan to, any other Person, and except in the ordinary course of business;
(no) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(op) any material capital expenditures; except for the Cannabiotix Acquisition and all commercially reasonable costs incurred, directly or indirectly, with new license applications;
(pq) imposition of any Encumbrance upon any of the Company properties, capital stock membership interest or assets, tangible or intangible;
(r) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders members or current or former directors, officers and employees, except in the ordinary course of business;
(uv) entry into a new line of business inconsistent with past practice or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $25,000 250,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock or other equity of, or by any other manner, any business or any Person or any division thereof;, except for the Cannabiotix Acquisition; or
(yz) except for the correction of any Tax Return for which any Tax Liability is satisfied prior to Closing, action by the any Company Party to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability Liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(z) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in accordance with the terms of this Agreement or in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s 's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(q) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which employees, other than as required by the aggregate costs and expenses exceed $1,000terms of this Agreement or as required by applicable Law, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Unionsimilar agreement, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(y) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(z) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in on Section 3.08 3.07 of the Company Disclosure SchedulesSchedule, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents Governing Documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s 's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any Trade Secrets included in the Company Intellectual Property;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other Person;
(no) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(op) any material capital expenditures;
(pq) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(r) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,00025,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its the Sellers, the Trustees, former stockholders or current or former directors, officers and employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zaa) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of Since the Company Disclosure Schedules, since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the CompanyMTE, any:
(a) event, occurrence or development that has had, or could would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the CompanyMTE Charter Documents;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the CompanyMTE, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s MTE's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Interim Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any material Trade Secrets included in MTE Intellectual Property;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other Person;
(no) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company MTE is a party or by which it is bound;
(op) any material capital expenditures;
(pq) imposition of any Encumbrance upon any of the Company MTE properties, capital stock or assets, tangible or intangible;
(r) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000employees, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of businessperson;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;; or
(yz) action by the Company MTE to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer the Company in respect of any Post-Closing Tax Period; or
or (zaa) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Travelzoo)
Absence of Certain Changes, Events and Conditions. Except Since the Interim Balance Sheet Date, except as set forth listed in Section 3.08 of the Company Disclosure Schedules, since the Balance Sheet DateSchedule, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Interim Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP AgreementsProperty;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of its current or former employees, officers, directors, consultants or independent contractors or consultantscontractors, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, 10,000 or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officermember, directormanager, consultant or independent contractor or consultantcontractor;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former an employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(ts) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former stockholders, directors, officers and employeesofficers, employees or Affiliates;
(ut) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vu) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal federal, state or state foreign bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wv) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xw) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yx) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zy) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in on Section 3.08 3.07 of the Company Disclosure Schedules, since the Most Recent Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, Date there has not been, with respect to the CompanyCompany or any of its Subsidiaries, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents Organizational Documents of the CompanyCompany or any of its Subsidiaries;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stockstock (other than in the ordinary course of business consistent with past practice);
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statementspractice;
(g) material change in the Company’s its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material ContractContract (other than in the ordinary course of business);
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money Indebtedness (other than Permitted Indebtedness) except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practiceLiabilities;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Most Recent Balance Sheet or cancellation of any debts or entitlementsentitlements (other than in the ordinary course of business);
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements(other than in the ordinary course of business);
(l) material amount of damage, destruction or loss (whether or not covered by insurance) to any of its assets or property;
(m) loan (or forgiveness of any loan), advance or capital contribution made by the Company or any of its Subsidiaries to, or investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation amendment of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expendituresexpenditures in excess of Five Thousand U.S. Dollars ($5,000) in the aggregate;
(p) imposition of any Encumbrance upon any of the Company its properties, capital stock or assets, tangible or intangibleintangible (other than Permitted Encumbrances);
(iq) grant of any bonuses, whether monetary or otherwise, or increase change in any wages, salary, severance, pension or other compensation or benefits in respect arrangement or agreement with any 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, (ii) change in the terms of employment for any employee directors or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultantstakeholder;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(ts) any loan to (or forgiveness of any loan to), or entry into any other transaction with, with any of its stockholders or current or former stakeholders, directors, officers and employeesemployees (other than in the ordinary course of business);
(ut) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vu) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wv) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xw) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yx) action by the Company to makechange in any tax election or method of tax accounting, change or rescind filing of any Tax election, amend any Tax Return or take any position on any amended Tax Return, take consent to any actionwaiver or extension of any applicable statute of limitations with respect to Taxes (except to the extent adequate accruals for such Taxes are reflected in the Financial Statements), omit to take any action or enter into any settlement or final determination of any Tax audit, claim, investigation, litigation or other transaction that proceeding or assessment in excess of the accruals for such Taxes reflected in the Financial Statements;
(y) cancellation or forfeiture of any of its debts or claims or any waiver of any of its rights;
(z) acceleration or delay in the collection of its notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the effect ordinary course of increasing business consistent with past practice;
(aa) delay or acceleration in the Tax liability or reducing any Tax asset of Buyer in respect payment of any Post-Closing Tax Periodof its accounts payable or other Liability beyond or in advance of its due date or the date when such account payable or other Liability would have been paid in the ordinary course of business consistent with past practice;
(bb) payment of a Liability more than ninety (90) days in advance of when due;
(cc) labor dispute or any activity or proceeding by a Union or representative thereof to organize any of its employees, or any lockouts, strikes, work stoppages or any threats thereof or any slowdowns or threats thereof by or with respect to such employees;
(dd) any Contract with any of its Affiliates; or
(zee) any Contract agreement to do take any of the foregoing, or any action or omission that would result actions specified in any of the foregoingthis Section 3.07.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practicepractice or pursuant to this Agreement or the Ancillary Documents, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents Organizational Documents of the Company;
(c) split, combination or reclassification of any shares of its capital stockthe Membership Interests or Equity Interests;
(d) issuance, sale or other disposition of any of its capital Membership Interests or Equity Interests, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stockMembership Interests or Equity Interests;
(e) declaration or payment of any dividends or other Cash distributions (except for customary Tax distributions) on or in respect of any of its capital stock Membership Interests, or Equity Interests, or redemption, purchase or acquisition of its capital stockMembership Interests or Equity Interests;
(f) declaration, payment of or any other distributions of Cash to any Seller Party (other than in respect of its Membership Interests), Related Party or any Affiliates of any of the foregoing other than ordinary course payments to any of the foregoing in their capacities as employees, consultants, or independent contractors of the Company for any wages, salaries, commissions, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants or independent contractors;
(g) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(gh) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(hi) entry into any Contract that would constitute a Material ContractContract except for as set forth in Section 3.08(i) of the Disclosure Schedules;
(ij) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(jk) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(kl) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Owned Intellectual Property, or material Mind Tank Owned Intellectual Property, other than non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice;
(m) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration or material Mind Tank IP Registration, or failure to take or maintain reasonable measures to protect the confidentiality or value of any Trade Secrets included in the Company Owned Intellectual Property or Company IP Agreementsmaterial Mind Tank Owned Intellectual Property;
(ln) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mo) any capital investment in, or any loan to, any other Person;
(np) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(oq) any material capital expendituresexpenditures other than the capital expenditures provided in the Balance Sheet;
(pr) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(s) except as set forth in Section 3.08(s) of the Disclosure Schedules, (i) the grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees employee for which the aggregate costs and expenses exceed $1,00025,000 per year per individual or $50,000 per year in the aggregate, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rt) hiring any new employees with an annual base salary or annualized hourly rate not to exceed $50,000, or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business, terminating any employee entitled by agreement, policy, or practice to any severance payments or benefits, terminating any executive officer, manager, or key employee other than for cause, or conducting any group termination, reduction in force, plant closing, or mass layoff of the Company’s employees;
(su) entry into any consulting or independent contractor agreement with, or retention of the services of, any individual consultant or independent contractor, whether doing business as an entity or not;
(v) entry into any staffing agreement with, or retention of the service of, any staffing firm or professional employer organization;
(w) except as set forth in Section 3.08(w) of the Disclosure Schedules, the adoption, modification or termination of any: (i) employmentemployment agreement or other Contract with any current, former, or prospective employee, consultant, or independent contractor of the Company that either (x) is not terminable at will by the Company or such Subsidiary without notice or penalty, other than in connection with hiring or promotions permitted hereunder, or (y) grants any compensation or benefits (other than ordinary course of business salary increases or annual bonus payments) or accelerates any vesting period as a result of the transactions contemplated by this Agreement or any other change in control of the Company or any Subsidiary, either alone or in conjunction with any other event, (ii) severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (iiiii) Benefit Plan or (iiiiv) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tx) settlement or compromise, or agreement to settle or compromise, any Action brought by or on behalf of any current or former employee, consultant, or independent contractor or any Governmental Authority with regard to any claimed violation of any Laws related to the Company’s current or former employees, consultants, or independent contractors;
(y) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(uz) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vaa) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wbb) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xcc) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(ydd) action by the Company to make, change or rescind any material Tax election, amend any Tax Return or Return, take any position on any Tax Return, or take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-taxable period (or portion thereof) beginning after the Closing Tax PeriodDate; ornor
(zee) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practicepractice or as set forth on Schedule 3.08, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet since the Balance Sheet Date or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP AgreementsProperty;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) material change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000employees, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or except with respect to (as Kozaris, the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(ts) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former stockholders, directors, officers and employees;
(ut) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vu) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wv) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xw) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yx) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zy) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Scheduleson Schedule 3.08, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the CompanyCompany Group, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the CompanyCompany Group;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the CompanyCompany Group, except as required by GAAP statuary accounting or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s Company Group's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract or amend or terminate any Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet Financial Statements or cancellation of any debts or entitlements;
(k) transfer, transfer or assignment of or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) abandonment or lapse of or failure to maintain in full force and effect any Company IP Registration;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other Person;
(no) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which any member of the Company Group is a party or by which it is bound;
(op) any material capital expenditures;
(pq) imposition of any Encumbrance upon any of the Company Group properties, capital stock or assets, tangible or intangible, except for Permitted Encumbrances;
(i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of its current or former employees, officers, directors, managers, Producers, independent contractors or consultants, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,00020,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, manager, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, manager, Producer, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, managers, officers and employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00050,000, individually (in the case of a lease, per annum) or $25,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period;
(aa) action by any member of the Company Group to amend the employment relationship with any Key Employee; or
(zbb) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Security National Financial Corp)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) (i) amendment of the charter, by-laws or other organizational documents of the Company;
; (cii) split, combination or reclassification of any shares of its capital stock;
; (diii) except for conversion of outstanding convertible notes and exercise of outstanding options, issuance, sale or other disposition of any of its capital stock or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
; or (eiv) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(fc) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(gd) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(ie) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(ji) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts y'debts or entitlements;
; (kii) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
; (l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(miii) any capital investment in, or any loan to, any other Person;
; (n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(oiv) any material capital expenditures;
; (pv) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible; (vi) purchase, lease or other acquisition of the right to own, use or lease any property or assets; or (vii) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof; Table Of Contents 12
(g) Except for the acceleration of vesting under the Company’s stock option agreements, acceleration, termination, material modification to or cancellation of any material Contract to which the Company is a party or by which it is bound;
(h) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) except for the acceleration of vesting under the Company’s stock option agreements, action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yj) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer the Surviving Corporation or Parent in respect of any Post-Closing Tax Period; or
(zk) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (MassRoots, Inc.)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 3.09 of the Company Disclosure SchedulesSchedule, since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charterarticles of incorporation, by-laws bylaws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s 's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Interim Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP AgreementsProperty;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(iq) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension general wage or other compensation or benefits salary increases in respect of its current Employees, or former employees, officers, directors, independent contractors or consultants, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultantEmployee;
(r) hiring entry into or promoting termination of any person as employment agreement or to (as collective bargaining agreement, written or oral, or modification of the case may be) an officer or hiring or promoting terms of any employee below officer except to fill a vacancy in the ordinary course of businesssuch existing agreement;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employeesEmployees;
(ut) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vu) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xv) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yw) adoption, amendment, modification or termination of any bonus, profit sharing, incentive, severance, or other plan, Contract or commitment for the benefit of any of its directors, officers and Employees (or any such action taken with respect to any other Benefit Plan);
(x) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Effective Date Tax Period; or
(zy) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since Since the Balance Sheet Date, and except as set forth on Section 3.08 of the Disclosure Schedules, other than in the ordinary course of business consistent with past practicepractice or in connection with the Pre-Closing Transactions, there has not been, with respect to the CompanyCompany or PTC, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the its charter, by-laws bylaws or other organizational documents of the Companydocuments;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Companypractice, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred Indebtedness in the ordinary course excess of business consistent with past practice$250,000;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its propertyproperty not covered by insurance in excess of $250,000;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expendituresexpenditure exceeding $100,000 in the aggregate;
(p) imposition of any Encumbrance upon any of the Company its properties, capital stock or assets, tangible or intangibleintangible that has neither been released nor will be released at or prior to the Closing;
(i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees employee for which the aggregate out of pocket costs and expenses of such termination exceed $1,00020,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of businessofficer;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultantconsultant with annual compensation in excess of $100,000, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders shareholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000100,000, individually (in the case of a lease, per annum) or $25,000 250,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(y) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer Parent or the Surviving Corporation in respect of any Post-Closing Tax Period; or
(z) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Northwest Pipe Co)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of any of the charter, by-laws or other organizational documents Organizational Documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s 's cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,00010,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00010,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(y) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(z) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Turning Point Brands, Inc.)
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 of the Company Disclosure Schedules, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practicepractice or as otherwise set forth on Section 4.07 of the Disclosure Schedules, since the Balance Sheet Date, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer depositsCustomer Deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to its property;
(m) any capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expenditures;
(p) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the material terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $1,000employees, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer position, or hiring or promoting any employee below an officer position, except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(t) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yx) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zy) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in Section 3.08 4.07 of the Company Disclosure SchedulesLetter, since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the material assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment assignment, or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) abandonment of, lapse of, or failure to maintain in full force and effect any Company IP Registration;
(m) material damage, destruction or loss (whether or not covered by insurance) to its property;
(mn) any capital investment in, or any loan to, any other Person;
(no) acceleration, termination, material modification to to, or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(op) any material capital expendituresexpenditures in excess of $25,000;
(pq) imposition of any Encumbrance (except for Permitted Encumbrances) upon any of the Company properties, capital stock or assets, tangible or intangible;
(r) (i) grant of any bonuses, whether monetary or otherwise, or increase in 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, (ii) change in the terms of employment for any employee employee, or any termination of any employees employees, for which employee the aggregate costs and expenses exceed compensation exceeds $1,000100,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant;
(rs) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer officer, except to fill a vacancy in the ordinary course of business;
(st) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral, except, in each case, as required by Law;
(tu) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and employees;
(uv) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vw) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wx) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,00015,000, individually (in the case of a lease, per annum) or $25,000 50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xy) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yz) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or
(zaa) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Changes, Events and Conditions. Except as set forth in on Section 3.08 3.07 of the Company Disclosure Schedules, since the Most Recent Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, Date there has not been, with respect to the CompanyCompany or any of its Subsidiaries, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents Organizational Documents of the CompanyCompany or any of its Subsidiaries;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stockstock (other than in the ordinary course of business consistent with past practice);
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statementspractice;
(g) material change in the Company’s its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any Contract that would constitute a Material ContractContract (other than in the ordinary course of business);
(i) incurrence, assumption or guarantee of any indebtedness for borrowed money Indebtedness (other than Permitted Indebtedness) except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practiceLiabilities;
(j) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Most Recent Balance Sheet or cancellation of any debts or entitlementsentitlements (other than in the ordinary course of business);
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements(other than in the ordinary course of business);
(l) material amount of damage, destruction or loss (whether or not covered by insurance) to any of its assets or property;
(m) loan (or forgiveness of any loan), advance or capital contribution made by the Company or any of its Subsidiaries to, or investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation amendment of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(o) any material capital expendituresexpenditures in excess of Five Thousand U.S. Dollars ($5,000) in the aggregate;
(p) imposition of any Encumbrance upon any of the Company its properties, capital stock or assets, tangible or intangibleintangible (other than Permitted Encumbrances);
(iq) grant of any bonuses, whether monetary or otherwise, or increase change in any wages, salary, severance, pension or other compensation or benefits in respect arrangement or agreement with any 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, (ii) change in the terms of employment for any employee directors or any termination of any employees for which the aggregate costs and expenses exceed $1,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultantstakeholder;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(ts) any loan to (or forgiveness of any loan to), or entry into any other transaction with, with any of its stockholders or current or former stakeholders, directors, officers and employeesemployees (other than in the ordinary course of business);
(ut) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(vu) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(wv) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $25,000, individually (in the case of a lease, per annum) or $25,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)assets, except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(xw) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;
(yx) action by the Company to makechange in any tax election or method of tax accounting, change or rescind filing of any Tax election, amend any Tax Return or take any position on any amended Tax Return, take consent to any actionwaiver or extension of any applicable statute of limitations with respect to Taxes (except to the extent adequate accruals for such Taxes are reflected in the Financial Statements), omit to take any action or enter into any settlement or final determination of any Tax audit, claim, investigation, litigation or other transaction that proceeding or assessment in excess of the accruals for such Taxes reflected in the Financial Statements;
(y) cancellation or forfeiture of any of its debts or claims or any waiver of any of its rights;
(z) acceleration or delay in the collection of its notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the effect ordinary course of increasing business consistent with past practice;
(aa) delay or acceleration in the Tax liability or reducing any Tax asset of Buyer in respect payment of any Post-Closing Tax Periodof its account payable or other Liability beyond or in advance of its due date or the date when such account payable or other Liability would have been paid in the ordinary course of business consistent with past practice;
(bb) payment of a Liability more than ninety (90) days in advance of when due;
(cc) labor dispute or any activity or proceeding by a Union or representative thereof to organize any of its employees, or any lockouts, strikes, work stoppages or any threats thereof or any slowdowns or threats thereof by or with respect to such employees;
(dd) any Contract with any of its Affiliates; or
(zee) any Contract agreement to do take any of the foregoing, or any action or omission that would result actions specified in any of the foregoingthis Section 3.07.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)