Absence of Certain Changes or Events. From June 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Law.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Applera Corp), Agreement and Plan of Merger (Invitrogen Corp), Agreement and Plan of Merger (Applera Corp)
Absence of Certain Changes or Events. From June 30December 31, 2007, through the date hereof, the Company Parent and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30December 31, 2007, through the date hereof, except as disclosed in the Company Parent SEC Documents, neither the Company Parent nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company Parent and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and except as disclosed in the Parent SEC Documents, there have not been (a) any Effects on or with respect to the Company Parent that constitute a Material Adverse Effect on the CompanyParent; (b) any issuance by the CompanyParent, or agreement or commitment of the Company Parent to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Optionsoptions, Restricted Stock (and Stock Unit Awards issued in lieu restricted stock, restricted stock unit awards, stock unit awards, shares of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Parent Common Stock issued to any director who elects to receive compensation in the form of under Parent’s employee stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), purchase plans or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Parent Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, exercise or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPsvesting thereof; (c) any repurchase, redemption or any other acquisition by the Company Parent or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company Parent or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Planequity compensation plan of Parent that has been disclosed to the Company, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Parent or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Law.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Applera Corp), Agreement and Plan of Merger (Applera Corp), Agreement and Plan of Merger (Invitrogen Corp)
Absence of Certain Changes or Events. From June 30, 2007, through (a) Since the date hereofof the Parent Balance Sheet, the Company business of Parent and each of its Subsidiaries have subsidiaries has been conducted their business in the ordinary course of such business consistent with past practice, except as practices (other than the transactions contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30Transaction Option Agreement) and there is not and has not been (i) any event, 2007occurrence, through development or state of circumstances or facts that has had or could reasonably be expected to have, individually or in the date hereofaggregate, a Material Adverse Effect on Parent or give rise to a Material Adverse Change on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent's capital stock or any other securities of Parent or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases which are not, individually or in the aggregate, material in amount from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any material change by Parent in its accounting methods, principles or practices, except as disclosed required by concurrent changes in the Company SEC DocumentsGAAP, neither the Company nor (iv) any revaluation by Parent of any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregateassets, other than in the ordinary course of business consistent with past practicebusiness, and there have not been or (av) any Effects on condition, event or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companyoccurrence which, individually or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form aggregate, could reasonably be expected to prevent or materially delay the ability of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock Parent to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, consummate the transactions contemplated by this Agreement and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, Transaction Option Agreement or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption perform its obligations hereunder or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Lawthereunder.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Cytyc Corp)
Absence of Certain Changes or Events. From June 30, 2007, through the date hereofof the Parent Balance Sheet to the date of this Agreement, the Company and each there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent's or any of its Subsidiaries have conducted subsidiaries' capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent's capital stock or any other securities of Parent or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their business termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of Parent's or any of its subsidiaries' capital stock, (iv) any granting by Parent or any of its subsidiaries of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of such business consistent with past practicepractice and grants of Parent Options, except as contemplated or any payment by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor Parent or any of its Subsidiaries has engaged in subsidiaries of any transaction or series of transactions material to the Company and its Subsidiaries in the aggregatebonus, other than except for bonuses made in the ordinary course of business consistent with past practice, and there have not been or any granting by Parent or any of its subsidiaries of any increase in severance or termination pay or any entry by Parent or any of its subsidiaries into any currently effective employment, severance, termination or director, officer or other employee indemnification agreement or any other employment or consulting related agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (av) entry by Parent or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9) other than licenses in the ordinary course of business consistent with past practice, (vi) any Effects on amendment or consent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance licensing agreement filed or required to be filed by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection Parent with the Celera Separation) and SEC, (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (dvii) any material change by Parent in its accounting principlesmethods, practices principles or methodspractices, except as required by concurrent changes in GAAP, SEC rule or policy or applicable Law; and (eviii) any revaluation by the Company or Parent of any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs writing down the value of capitalized inventory or write-offs of writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Lawbusiness.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Healtheon Corp), Agreement and Plan of Reorganization (Healtheon Corp), Agreement and Plan of Reorganization (Mede America Corp /)
Absence of Certain Changes or Events. From June 30, 2007, through Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereofhereof (the "Filed SEC Documents"), (ii) as set forth in Section 2.6 of the Company Disclosure Schedule, or (iii) for the Transactions, since the Balance Sheet Date, the Company and each of its Subsidiaries subsidiaries have conducted carried on and operated their business respective businesses in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions all material to the Company and its Subsidiaries in the aggregate, other than respects in the ordinary course of business consistent with past practice, and there have has not been occurred any: (a) any Effects on event or with respect change that has had or would reasonably be expected to have, individually or in the aggregate, a Company that constitute a Material Adverse Effect on the Company; Effect, (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), sale or other equity grants for compensatory purposes, and the grants disposition of rights to acquire stock under the ESPPs (including issuances or pledge or other encumbrance upon a material amount of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, property or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption other assets or any other acquisition by the Company or its Subsidiaries Real Property Lease as defined in Section 2.14 herein of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assetssubsidiaries, taken as a whole, including, without limitation, write-downs except sales of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any capital stock of the Company, (d) split, combination or reclassification of any capital stock of the Company, (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by GAAP, SEC rule or policy a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 2.6(h) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by the Company or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 2.6(i) of the Company Disclosure Schedule, copies of which have been made available to Purchaser, or any grant by the Company or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by the Company or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any Option, except acceleration previously provided for in the Stock Plan.
Appears in 3 contracts
Samples: Agreement (Odd Job Stores Inc), Agreement (Odd Job Stores Inc), Agreement (Odd Job Stores Inc)
Absence of Certain Changes or Events. From June 30, 2007, through Except as disclosed in the ------------------------------------ Company SEC Documents filed and publicly available prior to the date hereofof this Agreement (the "Filed Company SEC Documents") and except as set forth on Schedule 3.5 hereto or as it relates to the Viacom Transaction or as otherwise ------------ disclosed in writing by the Company to Evergreen prior to the execution and delivery of this Agreement, since the date of the most recent audited financial statements included in the Filed Company SEC Documents, the Company and each of its Subsidiaries subsidiaries have conducted their business only in the ordinary course course, and there has not been (i) any change which could reasonably be expected to have a Company Material Adverse Effect (including as a result of such business consistent with past practice, except as the consummation of the transactions contemplated by this Agreement Agreement), (ii) any declaration, setting aside or payment of any dividend or distribution (whether in connection cash, stock or property) with respect to any of the Merger and Company's outstanding capital stock (other than the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in payment of regular cash dividends on the Company SEC DocumentsConvertible Preferred Stock in accordance with usual record and payment dates), neither the Company nor (iii) any split, combination or reclassification of any of its Subsidiaries has engaged outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (iv) (x) any transaction or series of transactions material to granting by the Company and or any of its Subsidiaries subsidiaries to any director, officer or other employee or independent contractor of the Company or any of its subsidiaries of any increase in the aggregatecompensation or acceleration of benefits, other than except in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, and there have not been (ay) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation granting by the Company or any of its Subsidiaries subsidiaries to any director, officer or other employee or independent contractor of any material amount increases in, or acceleration of their assetsbenefits in respect of, taken as a wholeseverance or termination pay, includingor pay in connection with any change of control of the Company, without limitation, write-downs of inventory or write-offs of accounts receivable other than except in the ordinary course of business consistent with past prior practice or as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents or (z) any entry by the Company or any of its subsidiaries into any employment, severance, change of control, or termination or similar agreement with any such director, officer or other employee or independent contractor, or (v) any exchange in accounting methods, principles or practices by the Company or any of its subsidiaries materially affecting its assets, liability or business, except insofar as may have been required by GAAP, SEC rule or policy or applicable Lawa change in generally accepted accounting principles.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ginsburg Scott K), Agreement and Plan of Merger (Ginsburg Scott K), Agreement and Plan of Merger (Evergreen Media Corp)
Absence of Certain Changes or Events. From June 30Except (i) as disclosed in the CapStar SEC Documents or on Schedule 4.7 of the CapStar Disclosure Letter, 2007(ii) except for the Transactions and (iii) the transactions permitted by Section 6.3, through since the date hereofof the most recent audited financial statements included in the CapStar SEC Documents (the "CAPSTAR FINANCIAL STATEMENT DATE"), CapStar and the Company and each of its CapStar Subsidiaries have conducted their business only in the ordinary course (taking into account prior practices, including the acquisition of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger properties and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any issuance of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, securities) and there have has not been (a) any Effects on material adverse change in the business, financial condition or results of operations of CapStar and the CapStar Subsidiaries taken as a whole (a "CAPSTAR MATERIAL ADVERSE CHANGE"), nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to result in a CapStar Material Adverse Change, (b) except for the Transactions and regular quarterly distributions in the amount of $.4144 per CapStar Preferred OP Unit, any authorization, declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company CapStar Common Stock issued to or any director who elects to receive compensation in the form security of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock)CapStar Subsidiary, or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchasesplit, redemption combination or reclassification of the CapStar Common Stock or any other acquisition by issuance or the Company or its Subsidiaries authorization of any outstanding issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of capital stock of CapStar or other securities ofpartnership interests in any CapStar Subsidiary which is a partnership, or other any issuance of an ownership interests interest in, the Company or its Subsidiariesany CapStar Subsidiary, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principlesdamage, practices destruction or methodsloss, except as required whether or not covered by GAAPinsurance, SEC rule that has or policy would have a CapStar Material Adverse Effect, or applicable Law; and (e) any revaluation change in accounting methods, principles or practices by the Company CapStar or any of CapStar Subsidiary materially affecting its Subsidiaries of any material amount of their assets, taken liabilities or business, except insofar as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than may have been disclosed in the ordinary course of business consistent with past practice CapStar SEC Documents or as required by a change in GAAP, SEC rule or policy or applicable Law.
Appears in 2 contracts
Samples: Lease Agreement (American General Hospitality Corp), Lease Agreement (Capstar Hotel Co)
Absence of Certain Changes or Events. From June 30March 31, 2007, through 2008 until the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practicethis Agreement, except as contemplated by this Agreement or as provided in Section 3.9 of the Parent Schedule, Parent has conducted its businesses only in the ordinary course and there has not been (i) any event having, individually or in the aggregate, a Parent Material Adverse Effect, (ii) any change by Parent in its accounting methods, principles or practices materially affecting the consolidated assets, liabilities or results of operations of Parent and its consolidated subsidiaries, except insofar as may have been required by a change in GAAP, (iii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of Parent or any redemption, purchase or other acquisition for value of any of its capital stock, (iv) any split, combination or reclassification of any capital stock of Parent, (v) any incurrence, assumption or guarantee by Parent of any indebtedness for borrowed money other than under the Seventh Restated Credit Agreement dated as of October 31, 2006 among Parent, certain of Parent’s subsidiaries, the lenders party thereto and JPMorgan Chase Bank, N.A.(as amended, the “Parent Credit Agreement”) , (vi) any creation or other incurrence by Parent of any lien on any asset securing an amount in excess of $300,000 (other than Permitted Liens, liens securing obligations under the Parent Credit Agreement and liens securing purchase money obligations created in connection with the Merger and the transactions contemplated thereby. From June 30acquisition, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, of field vehicles and there have office equipment, not been exceeding $3,000,000 in the aggregate), (avii) any Effects on material Tax election by Parent or with respect to any settlement of any material Tax liability, (viii) except for the Company that constitute a Material Adverse Effect on acquisition of oil and gas leases and seismic data and the Company; drilling of xxxxx in the ordinary course of business, any asset acquisition or capital expenditure by Parent in excess of $1,500,000 individually or $3,000,000 in the aggregate, (bix) any issuance by the Company, termination or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities amendment of, or other ownership interests inwaiver of any material right under, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such planParent Material Contract; (dx) any material change in accounting principles, practices damage to or methods, except as required by GAAP, SEC rule destruction or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries loss of any material amount asset of their assetsParent (whether or not covered by insurance), taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable (xi) other than by expiration of any lease, any sale or other disposition by Parent, in any single or related series of transactions, of assets having a value in excess of $1,500,000; (xii) any granting by Parent of any increase in compensation or fringe benefits to any employee, except for normal increases of cash compensation in the ordinary course of business consistent with past practice practice, or as required any payment by GAAPParent of any bonus, SEC rule except for bonuses paid in the ordinary course of business consistent with past practice, or policy any granting by Parent of any increase in severance or applicable Lawtermination pay or any entry by Parent into any employment, severance, termination or indemnification agreement; (xiii) any entry by Parent into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property in excess of $3 million, (xiv) any change in Parent’s independent petroleum engineers, (xv) any revaluation for Tax reporting or financial statement purposes by Parent of any of its assets, including writing down or writing off notes or accounts receivable in excess of $300,000, or (xvi) the entering into of any agreement, whether written or oral, to do any of the foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Edge Petroleum Corp), Agreement and Plan of Merger (Chaparral Energy, Inc.)
Absence of Certain Changes or Events. From June Except as set forth in Schedule 2.9 hereto or in the interim balance sheets of Beacon as of September 30, 2007 (including the notes thereto), since September 30, 2007, through there has not been: (i) any Material Adverse Effect on Beacon, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Beacon's stock, or any purchase, redemption or other acquisition by Beacon of any of Beacon's capital stock or any other securities of Beacon or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Beacon's capital stock, or any amendment or modification of the date hereofterms of any options, the Company and each warrants or convertible securities of its Subsidiaries have conducted their business Beacon, (iv) any granting by Beacon of any increase in the ordinary course of such business consistent with past practicecompensation or fringe benefits, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Beacon of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Beacon of any increase in severance or termination pay or any entry by Beacon into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Beacon of the nature contemplated hereby, (dv) entry by Beacon into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken Intellectual Property (as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or as any amendment or consent with respect to any licensing agreement filed or required to be filed by GAAPBeacon with respect to any Governmental Entity, SEC rule (vi) any material change by Beacon in its accounting methods, principles or policy practices, (vii) any change in the auditors of Beacon, (vii) any issuance of capital stock, options or applicable Lawwarrants of Beacon, or (viii) any revaluation by Beacon of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of Beacon other than in the ordinary course of business.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Henderson J Sherman Iii), Securities Exchange Agreement (Suncrest Global Energy Corp)
Absence of Certain Changes or Events. From June 30Other than as set forth in Section 3.10 to the Company Disclosure Schedule, 2007since August 31, through 1998, there has been no material adverse change, and no change except in the date hereofOrdinary Course of Business, in the business, operations, prospects, condition (financial or otherwise), Assets or liabilities of the Company or any Subsidiary. Except as set forth in Section 3.10 to the Company Disclosure Schedule, since August 31, 1998, the Company and each of its the Subsidiaries have conducted their business respective businesses substantially in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger manner theretofore conducted and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed only in the Company SEC DocumentsOrdinary Course of Business, and neither the Company nor any Subsidiary has (a) incurred any material damage, destruction or loss not covered by insurance with respect to any Assets of the Company or of any such Subsidiary; (b) issued any capital stock or other equity securities or granted any options, warrants or other rights calling for the issuance thereof; (c) issued any bonds or other long-term debt instruments, granted any options, warrants or other rights calling for the issuance thereof, or borrowed any funds; (d) incurred, or become subject to, any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown), except current liabilities incurred in the Ordinary Course of Business; (e) discharged or satisfied any Encumbrance or paid any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown) other than current liabilities shown in the Unaudited Balance Sheets (as defined in Section 6.08) and current liabilities incurred since August 31, 1998, in the Ordinary Course of Business; (f) declared or made payment of, or set aside for payment, any dividends or distributions of any Assets, or purchased, redeemed or otherwise acquired any of its Subsidiaries has engaged capital stock, any securities convertible into capital stock, or any other securities; (g) mortgaged, pledged or subjected to any Encumbrance any of its material Assets; (h) sold, exchanged, transferred or otherwise disposed of any of its material Assets, or canceled any debts or claims, except in each case in the Ordinary Course of Business; (i) written down the value of any transaction Assets or series of transactions material written off as uncollectable any debt, notes or accounts receivable, except to the Company extent previously reserved against in the Financial Statements and its Subsidiaries not material in amount, and except for write-downs and write-offs in the Ordinary Course of Business, none of which, individually or in the aggregate, are material; (j) entered into any transactions other than in the ordinary course Ordinary Course of business consistent Business; (k) except in the Ordinary Course of Business, increased the rate of compensation payable, or to become payable, by it to any of its officers, employees, agents or independent contractors over the rate being paid to them on August 31, 1998, (l) made or permitted any amendment or termination of any material Agreement to which it is a party; (m) through negotiation or otherwise made any commitment or incurred any liability to any labor organization; (n) made any accrual or arrangement for or payment of bonuses or special compensation of any kind to any director, officer or employee, except for any accrual or arrangement for or payment of bonuses or special compensation in the Ordinary Course of Business to employees who are not directors or officers; (o) directly or indirectly paid any severance or termination pay in excess of two months' salary to any officer or employee with past practicean annual salary in excess of $60,000; (p) made capital expenditures, and there have or entered into commitments therefor, not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on provided for in the Company; 's capital budget for 1998 (b) any issuance a copy of which has been furnished by the Company, or agreement or commitment of the Company to issueXxXxxx) or, any shares of if applicable, the Company's capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe budget for or acquire, shares of 1999 (which capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued budget shall have been approved by XxXxxx as provided in lieu of Restricted Stock issued to directors who elect to defer stock awardsSection 5.01(i)), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants except for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPscapital expenditures permitted by Section 5.01; (cq) made any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant change in any Company Equity Plan, as permitted by the terms method of such plan; (d) any material change in accounting principles, practices or methods, accounting practice except as required by GAAP; (r) entered into any transaction of the type described in Section 3.19; (s) made any charitable contributions or pledges exceeding $10,000 individually or $100,000 in the aggregate; or (t) made any Agreement to do any of the foregoing. At the Closing, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any shall deliver to XxXxxx an updated Section 3.10 to the Company Disclosure Schedule in accordance with the provisions of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable LawSection 6.04.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (McLeodusa Inc), Agreement and Plan of Merger (McLeodusa Inc)
Absence of Certain Changes or Events. From June 30Except as disclosed in Parent Reports filed prior to the date of this Agreement or as set forth in the Company Disclosure Schedule and except for the transactions contemplated hereby, 2007from December 31, 2000 (the "Parent Balance Sheet Date") through the date hereof, the Company Parent and each of its Subsidiaries subsidiaries, taken as a whole, have conducted their business businesses only in the ordinary course of such business and in a manner consistent with past practicepractice and there has not been: (a) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of Parent or any of its subsidiaries that would have a Parent Material Adverse Effect; (b) any material change by Parent or any of its subsidiaries in their accounting methods, principles or practices (except as contemplated may be required by this Agreement applicable Law or GAAP); (c) any declaration, setting aside or payment of any dividends or distributions in connection with respect of shares of the Merger and capital stock of Parent or any of its subsidiaries (other than dividends permitted in Article V), or any redemption, purchase or other acquisition by Parent or any of its subsidiaries of any of their securities (other than repurchases after the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as Parent Balance Sheet Date pursuant to stock repurchase programs disclosed in the Company SEC DocumentsParent Reports); (d) any split, neither the Company nor combination or reclassification of any capital stock of Parent or any of its Subsidiaries has engaged subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of Parent or any of its subsidiaries; (e) any acquisition, divestiture, or investment in the equity or debt securities of any person (including in any transaction joint venture or series of transactions similar arrangement) material to the Company Parent and its Subsidiaries in the aggregatesubsidiaries, taken as a whole; (f) any entry by Parent or any of its subsidiaries into any commitment or transaction material to Parent and its subsidiaries, taken as a whole, other than in the ordinary course of business and consistent with past practice, and there have not been ; or (ag) any Effects on or with respect to the Company that constitute a Parent Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable LawEffect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dean Foods Co), Agreement and Plan of Merger (Suiza Foods Corp)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since January 1, 2006, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with the Merger and the transactions contemplated thereby. From June 30cash, 2007stock or property) in respect of, through the date hereofany of Parent’s capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (vii) any issuance of capital stock of Parent, or policy (viii) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Endeavor Acquisition Corp.), Agreement and Plan of Reorganization (Endeavor Acquisition Corp.)
Absence of Certain Changes or Events. From June 30Except (i) as specifically contemplated or permitted by this Agreement, 2007(ii) as set forth in the Regis Filed SEC Reports or in the Regis Financial Statements or (iii) for changes resulting from the announcement of this Agreement or the transactions contemplated hereby, since July 1, 2005 through the date hereof, the Company (A) Regis and each of its Subsidiaries have conducted their business only in the ordinary course of such business consistent with past practicecourse, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and (B) there have has not been any event, change, circumstance or development (aincluding any damage, destruction or loss whether or not covered by insurance) any Effects on which, individually or with respect in the aggregate, has had, or would reasonably be expected to the Company that constitute have, a Material Adverse Effect on Regis. Since July 1, 2005 through the Company; (b) any issuance by the Company, or agreement or commitment date of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methodsthis Agreement, except as required by GAAPset forth in the Regis Filed SEC Reports, SEC rule or policy or applicable Law; and (e) any revaluation by the Company none of Regis or any of its Subsidiaries has taken any action that, if taken during the period from the date of this Agreement through the Effective Time, would constitute a breach of Section 6.1 (other than a breach of Section 6.1(c) or (f) (solely with respect to transactions between Regis and a wholly owned Subsidiary of Regis or two wholly owned Subsidiaries of Regis)). Merger Sub has not conducted any activities other than in connection with the organization of Merger Sub on January 5, 2006, the negotiation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby. Subco has not conducted any activities other than in connection with the organization of Subco on January 5, 2006, the negotiation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby. Since July 1, 2003 and prior to the date of this Agreement, to the Knowledge of Regis, Regis and its Subsidiaries have not engaged in any Diversion. Since July 1, 2003 through the date hereof, no supplier of any material amount quantity of their assetsprofessional beauty products to Regis and its Subsidiaries has cancelled, taken as a whole, including, without limitation, write-downs of inventory terminated or write-offs of accounts receivable other than in the ordinary course of business consistent materially and adversely modified its supply relationship with past practice or as required by GAAP, SEC rule or policy or applicable LawRegis and its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alberto Culver Co), Agreement and Plan of Merger (Regis Corp)
Absence of Certain Changes or Events. From June 30Except as otherwise set forth on Schedule 5.07 of the Parent Disclosure Schedule, 2007since March 17, through 1999, Parent and the date hereof, the Company and each of its Parent Subsidiaries have conducted their business businesses only in the ordinary course of such business consistent with past practicepractice and, except as contemplated by since such date, there has not been (i) any Parent Material Adverse Effect, (ii) any event that could reasonably be expected to prevent or materially delay the performance of Parent's obligations pursuant to this Agreement in connection with and the consummation of the Merger and by Parent, (iii) any material change by Parent in its accounting methods, principles or practices, (iv) any declaration, setting aside or payment of any dividend or distribution in respect of the transactions contemplated thereby. From June 30shares of Parent Common Stock or any redemption, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor purchase or other acquisition of any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregateParent's securities, other than (v) except in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation increase in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), compensation or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, benefits or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries establishment of any outstanding shares of capital bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; option (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs the granting of inventory stock options, stock appreciation rights, performance awards or write-offs restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers of accounts receivable Parent or any Parent Subsidiary, (vi) any issuance or sale of any stock, notes, bonds or other securities other than pursuant to the exercise of outstanding securities, or entering into any agreement with respect thereto, (vii) any amendment to the Parent's certificate of incorporation or bylaws, (viii) other than in the ordinary course of business, any (x) purchase, sale, assignment or transfer of any material assets, (y) mortgage, pledge or the institution of any lien, encumbrance or charge on any material assets or properties, tangible or intangible, except for liens for taxes not yet delinquent and such other liens, encumbrances or charges which do not, individually or in the aggregate, have a Parent Material Adverse Effect, or (z) waiver of any rights of material value or cancellation or any material debts or claims, (ix) any incurrence of any material liability (absolute or contingent), except for current liabilities and obligations incurred in the ordinary course of business consistent with past practice practice, (x) any incurrence of any damage, destruction or as required similar loss, whether or not covered by GAAPinsurance, SEC rule materially affecting the business or policy properties of Parent or applicable Lawany Parent Subsidiary, or (xi) any entering into any transaction of a material nature other than in the ordinary course of business, consistent with past practices.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Multex Com Inc), Agreement and Plan of Merger and Reorganization (Multex Com Inc)
Absence of Certain Changes or Events. From June Except as set forth in Schedule 2.9, since April 30, 20072010, through the date hereofthere has not been: (i) any Material Adverse Effect on Plastec, the Company and each (ii) any declaration, setting aside or payment of its Subsidiaries have conducted their business any dividend on, or other distribution (whether in the ordinary course cash, stock or property) in respect of, any of Plastec’s shares, or any purchase, redemption or other acquisition by Plastec of any of Plastec’s shares or any other securities of Plastec or any options, warrants, calls or rights to acquire any such business consistent with past practiceshares or other securities, (iii) any split, combination or reclassification of any of Plastec’s share structure, (iv) (A) any granting by Plastec of any increase in compensation or fringe benefits, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been or (aB) any Effects on payment by Plastec of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or with respect to the Company that constitute a Material Adverse Effect on the Company; (bC) any issuance granting by the CompanyPlastec of any increase in severance or termination pay or any entry by Plastec into any currently effective employment, severance, termination or indemnification agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by agreement the Company benefits of which are contingent or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methodswhich are materially altered adversely to Plastec upon the occurrence of a transaction involving Plastec of the nature contemplated hereby, except as required in the case of clause (C) for such employment, severance, termination, indemnification or other agreements made in the ordinary course of business consistent with past practice, (v) entry by GAAP, SEC rule Plastec into any licensing or policy other agreement with regard to the acquisition or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken Intellectual Property (as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable defined in Section 2.18) other than licenses in the ordinary course of business consistent with past practice or as any amendment or consent with respect to any licensing agreement filed or required to be filed by GAAPPlastec with respect to any Governmental Entity, SEC rule (vi) any material change by Plastec in its accounting methods, principles or policy practices except for those changes required under IFRS, (vii) any change in the auditors of Plastec, except for the engagement of Xxxxx Xxxxxxxx in May 2010, (viii) any issuance of shares of Plastec, (ix) any revaluation by Plastec of any material portion of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of Plastec other than in the ordinary course of business or (x) any agreement, whether written or oral, to do any of the foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (GSME Acquisition Partners I), Agreement and Plan of Reorganization (GSME Acquisition Partners I)
Absence of Certain Changes or Events. From June 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except Except (i) as disclosed in the Company SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), neither or (ii) as set forth in Section 6.6 of the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to Purchaser Disclosure Schedule, since the Company Balance Sheet Date, Purchaser and its Subsidiaries subsidiaries have carried on and operated their respective businesses in the aggregate, other than all material respects in the ordinary course of business consistent with past practice, and there have has not been occurred any: (a) any Effects on event or with respect change that has had or would reasonably be expected to have, individually or in the Company that constitute aggregate, a Purchaser Material Adverse Effect on the Company; Effect, (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), sale or other equity grants for compensatory purposes, and the grants disposition of rights to acquire stock under the ESPPs (including issuances or pledge or other encumbrance upon a material amount of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, property or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption other assets or any other acquisition by the Company or its Subsidiaries Real Property Lease as defined in Section 6.13 herein of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Purchaser or any of its Subsidiaries of any material amount of their assetssubsidiaries, taken as a whole, including, without limitation, write-downs except sales of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice practice, (c) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of Purchaser or any of its subsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of Purchaser to its parent), or any repurchase, redemption or other acquisition by Purchaser or any of its subsidiaries of any capital stock of Purchaser, (d) split, combination or reclassification of any capital stock of Purchaser, (e) change in financial or Tax accounting methods, principles or practices by Purchaser or its subsidiaries, except insofar as may have been required by GAAP, SEC rule or policy a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of Purchaser or any of its subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by Purchaser or any of its subsidiaries pursuant to the Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Purchaser Material Adverse Effect), (h) grant by Purchaser or any of its subsidiaries to any officer of any increase in compensation, except as was required under any employment agreements set forth on Section 6.6(h) of the Purchaser Disclosure Schedule, copies of which have been made available to Seller, or any granting by Purchaser or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (i) grant by Purchaser or any of its subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements set forth on Section 6.6(i) of the Purchaser Disclosure Schedule, copies of which have been made available to Seller, or any grant by Purchaser or any of its subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (j) entry by Purchaser or any of its subsidiaries into any (or amendment of any existing) employment, severance or termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Purchaser Plan (as hereinafter defined) or (l) acceleration of vesting of any option, except acceleration previously provided for in the Stock Plan.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Odd Job Stores Inc), Asset Purchase Agreement (Odd Job Stores Inc)
Absence of Certain Changes or Events. From June 30The Company maintains a standard system of accounting established and administered in accordance with GAAP. The Company's unaudited balance sheet as of July 31, 20072004 is referred to in this Agreement as the "Company Balance Sheet." The accounts receivable shown on the Company Balance Sheet arose in the Company's ordinary course of business, through consistent with its past practices, and have been collected or are collectible in the book amounts thereof, less an amount not in excess of the allowance for doubtful accounts provided for in the Company Balance Sheet. Allowances for doubtful accounts and warranty returns are adequate and have been prepared in accordance with GAAP consistently applied and in accordance with the Company's past practices. The Company's receivables arising after the Balance Sheet Date and before the Closing Date arose or will arise in the Company's ordinary course of business based on bona fide sales, consistent with its past practices, and have been collected or are collectible in the book amounts thereof, less allowances for doubtful accounts and warranty returns determined in accordance with GAAP consistently applied and the Company's past practices. None of the Company's receivables is subject to any material claim of offset, recoupment, setoff or counter-claim, and the Company does not have any Knowledge of any specific facts or circumstances (whether asserted or unasserted) that could give rise to any such claim. No material amount of receivables is contingent upon the performance by the Company of any obligation or contract other than normal warranty repair and replacement. No person has any encumbrance on any of such receivables, and no agreement for deduction or discount has been made with respect to any of such receivables. Since the date hereofof the Company Balance Sheet, the Company and each of has conducted its Subsidiaries have conducted their business in all material respects in the ordinary course of such business consistent with past practicepractice and, except as contemplated by this Agreement since such date, there has not occurred: (i) any change, development, event or other circumstance, situation or state of affairs that has had or would reasonably be expected to have a Material Adverse Effect on the Company; (ii) any amendments to or changes in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in either of the Company SEC Charter Documents; (iii) any damage to, neither destruction or loss of any asset of the Company nor (whether or not covered by insurance) that would reasonably be expected to have a Material Adverse Effect on the Company; (iv) any change by the Company in its accounting methods, principles or practices; (v) any revaluation by the Company of any of its Subsidiaries has engaged in any transaction assets, including, without limitation, writing down the value of inventory or series of transactions material to the Company and its Subsidiaries in the aggregate, writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, in terms of both frequency and there have not been amount, and in any event in excess of $50,000; (avi) any Effects on sale of a material amount of assets (tangible or with respect to the Company that constitute a Material Adverse Effect on intangible) of the Company; or (bvii) any issuance by other action or event that would have required the Company, or agreement or commitment consent of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock Purchaser pursuant to Section 4.1 had such action or event occurred after the ESPPs upon conversion date of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Lawthis Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nstor Technologies Inc), Stock Purchase Agreement (Palo Alto Acquisition CORP)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in the GSME SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since November 25, 2009, there has not been: (i) any Material Adverse Effect on GSME or GSME Sub, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with the Merger and the transactions contemplated thereby. From June 30cash, 2007stock or property) in respect of, through the date hereofany of GSME’s or GSME Sub’s capital stock, or any purchase, redemption or other acquisition by GSME or GSME Sub of any of GSME’s or GSME Sub’s capital stock or any other securities of GSME or GSME Sub or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of GSME’s or GSME Sub’s capital stock, (iv) any granting by GSME or GSME Sub of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on payment by GSME or GSME Sub of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by GSME or GSME Sub of any increase in severance or termination pay or any entry by GSME or GSME Sub into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving GSME or GSME Sub of the nature contemplated hereby, (dv) entry by GSME or GSME Sub into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by GSME or GSME Sub with respect to any Governmental Entity, (vi) any material change by GSME or GSME Sub in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of GSME or policy GSME Sub, (viii) any issuance of capital stock of GSME or applicable LawGSME Sub, or (ix) any revaluation by GSME or GSME Sub of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of GSME or GSME Sub other than in the ordinary course of business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (GSME Acquisition Partners I), Agreement and Plan of Reorganization (GSME Acquisition Partners I)
Absence of Certain Changes or Events. From June 30Except as set forth in Schedule 3.9 hereto, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June Agreement, since September 30, 20072005, through there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent's capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent's capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) except for the date hereofReverse Split contemplated following the Closing, any split, combination or reclassification of any of Parent's capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (vii) except for the Debt Financing, Preferred Share Buy-out, or policy Loan Conversion, any issuance of, or applicable Lawagreement to issue, capital stock of Parent or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, or (viii) any revaluation by Parent of any of their respective assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business Except as disclosed in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, Chancellor SEC Documents or except as disclosed in the Company Chancellor Disclosure Letter, or as otherwise agreed to in writing after the date hereof by Capstar, or as expressly permitted by this Agreement, since the date of the most recent audited financial statements included in the Chancellor SEC Documents, neither Chancellor and its subsidiaries have conducted their business only in the Company nor ordinary course, and there has not been (i) any change which could reasonably be expected to have a Chancellor Material Adverse Effect (including as a result of the consummation of the transactions contemplated by this Agreement), (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of Chancellor's currently outstanding capital stock (other than the payment of regular cash dividends on the Chancellor 7% Convertible Preferred Stock and Chancellor $3.00 Convertible Preferred Stock, in each case in accordance with usual record and payment dates), (iii) any split, combination or reclassification of any of its Subsidiaries has engaged outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, (iv) (x) any transaction granting by Chancellor or series any of transactions material its subsidiaries to the Company and any director, officer or other employee or independent contractor of Chancellor or any of its Subsidiaries subsidiaries of any increase in the aggregatecompensation or acceleration of benefits, other than except in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Chancellor SEC Documents, and there have not been (ay) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance granting by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Chancellor or any of its Subsidiaries subsidiaries to any director, officer or other employee or independent contractor of any material amount increase in, or acceleration of their assetsbenefits in respect of, taken as a wholeseverance or termination pay, includingor pay in connection with any change of control of Chancellor, without limitation, write-downs of inventory or write-offs of accounts receivable other than except in the ordinary course of business consistent with past prior practice or as was required by GAAPunder any employment, SEC rule severance or policy or applicable Law.termination agreements in effect as
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, and except as contemplated by this Agreement, since the Company and each date of its Subsidiaries have conducted their business the most recent balance sheet included in the Parent Financial Statement, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent’s capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of such business consistent with past practice, or any payment by Parent of any bonus, except as for bonuses made in the ordinary course of business consistent with past practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (v) entry by this Agreement Parent into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in connection the ordinary course of business consistent with the Merger and the transactions contemplated thereby. From June 30past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, 2007(vi) any material change by Parent in its accounting methods, through the date hereofprinciples or practices, except as disclosed required by concurrent changes in U.S. GAAP, (vii) any change in the Company SEC Documentsauditors of Parent, neither the Company nor (viii) any issuance of capital stock of Parent, or (ix) any revaluation by Parent of any of its Subsidiaries has engaged in assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any transaction or series sale of transactions material to the Company and its Subsidiaries in the aggregate, assets of Parent other than in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Bowen Acquisition Corp)
Absence of Certain Changes or Events. From June Except as disclosed in the Parent SEC Documents or as set forth in Section 4.07 of the Disclosure Schedule, since September 30, 20072003 (the “Parent Balance Sheet Date”), through Parent and the date hereof, the Company and each of its Parent Subsidiaries have conducted their business respective businesses only in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and there have has not been any material adverse change (as defined in Section 9.03) with respect to Parent and the Parent Subsidiaries, taken as a whole. Except as disclosed in the Parent SEC Documents or as set forth in Section 4.07 of the Disclosure Schedule, since the Parent Balance Sheet Date, there has not been (ai) any Effects on declaration, setting aside or payment of any dividend or other distribution with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of Parent’s capital stock or securities convertible into any redemption, purchase or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares other acquisition of any of its capital stock, (ii) any split, combination or reclassification of any of Parent’s capital stock or any issuance or the authorization of any issuance of any other than (i) grants of Company Stock Optionssecurities in respect of, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation or in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants substitution for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and its capital stock, (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (diii) any material change in accounting principlesmethods, principles or practices by Parent (except insofar as may be required by a change in GAAP), (iv) (w) any granting by Parent, Acquisition Sub or methodsany of the Parent Subsidiaries to any executive officer of Parent, Acquisition Sub or any of the Parent Subsidiaries of any increase in compensation, except in the ordinary course of business (including in connection with promotions) consistent with past practice or as was required under employment agreements in effect as of the Parent Balance Sheet Date, (x) any granting by Parent, Acquisition Sub or any of the Parent Subsidiaries to any such officer of any increase in severance or termination pay, except as part of a standard employment package to any person promoted or hired, or as was required by GAAPunder employment, SEC rule severance or policy or applicable Law; and termination agreements in effect as of the Parent Balance Sheet Date, (ey) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than except employment arrangements in the ordinary course of business consistent with past practice with employees other than any executive officer of Parent, Acquisition Sub or any of the Parent Subsidiaries, as applicable, any entry by Parent, Acquisition Sub or any of the Parent Subsidiaries, as applicable, into any employment, severance or termination agreement with any such employee or executive officer, or (z) any increase in or establishment of any bonus, insurance, deferred compensation, pension, retirement, profit-sharing, stock option (including the granting of stock options, stock appreciation rights, performance awards or restricted stock awards or the amendment of any existing stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan or agreement or arrangement, (v) any damage, destruction or loss, whether or not covered by insurance, that has or reasonably could be expected to have a material adverse effect on Parent, (vi) any amendments or changes in the Certificate of Incorporation or Bylaws of Parent, (vii) any material revaluation by Parent of any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business, or (viii) any other action or event that would have required by GAAP, SEC rule the consent of the Company pursuant to Section 5.01 had such action or policy or applicable Lawevent occurred after the date of this Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except Except as set forth on Schedule 3.9 or as contemplated by this Agreement in connection with the Merger Agreement, and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company Parent SEC DocumentsReports, neither the Company nor since March 31, 2006, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of its Subsidiaries has engaged Parent's capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent's capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) except for the Reverse Split contemplated following the Closing, any split, combination or reclassification of any of Parent's capital stock, (iv) any granting by Parent of any increase in any transaction compensation or series fringe benefits, except for normal increases of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (vii) any issuance of, or policy agreement to issue, capital stock of Parent or applicable Lawany other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, or (viii) any revaluation by Parent of any of their respective assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Applied Spectrum Technologies Inc)
Absence of Certain Changes or Events. From June 30Except as set forth in Parent SEC Reports filed prior to the date of this Agreement, and except as contemplated herein, since January 1, 2007, through the date hereofthere has not been: (i) any Material Adverse Effect on Parent, the Company and each (ii) any declaration, setting aside or payment of its Subsidiaries have conducted their business any dividend on, or other distribution (whether in the ordinary course cash, stock or property) in respect of, any of Parent’s capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such business consistent with past practiceshares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any material increase in compensation or fringe benefits, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP, SEC rule (vii) any change in the auditors of Parent, (viii) any issuance of capital stock of Parent, (ix) any revaluation by Parent of any of its assets, other than in the ordinary course of business, including, without limitation, writing down the value of capitalized inventory or policy writing off notes or applicable Lawaccounts receivable or any sale of assets of Parent other than in the ordinary course of business, or (x) any agreement, whether written or oral, to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ascend Acquisition Corp.)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in GGAC SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since March 31, 2014, there has not been: (i) any Material Adverse Effect on GGAC, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with the Merger and the transactions contemplated thereby. From June 30cash, 2007stock or property) in respect of, through the date hereofany of GGAC’s capital stock, or any purchase, redemption or other acquisition by GGAC of any of GGAC’s capital stock or any other securities of GGAC or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of GGAC’s capital stock, (iv) any granting by GGAC of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition payment by the Company or its Subsidiaries GGAC of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methodsbonus, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than for bonuses made in the ordinary course of business consistent with past practice practice, or any granting by GGAC of any increase in severance or termination pay or any entry by GGAC into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving GGAC of the nature contemplated hereby, (v) any material change by GGAC in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vi) any change in the auditors of GGAC, (vi) any issuance of capital stock of GGAC, or policy (vii) any revaluation by GGAC of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of GGAC other than in the ordinary course of business.
Appears in 1 contract
Samples: Share Purchase Agreement (Garnero Group Acquisition Co)
Absence of Certain Changes or Events. From June 30, 2007, through Since the date hereofof the Parent Balance Sheet there has not been: (i) any Material Adverse Effect on the Parent, the Company and each (ii) any split, combination, or reclassification of its Subsidiaries have conducted their business in the ordinary course any of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor Parent's or any of its Subsidiaries has engaged subsidiaries' capital stock, (iii) any granting by Parent or any of its subsidiaries of any increase in any transaction compensation or series fringe benefits, except for normal increases of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been or any payment by Parent or any of its subsidiaries of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, (aiv) any Effects on entry by Parent or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companyof its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by agreement the Company benefits of which are contingent or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Parent Intellectual Property (as defined herein) other than licenses in the ordinary course of business consistent with past practice, (vi) any material change by Parent in its accounting principlesmethods, practices principles or methodspractices, except as required by concurrent changes in GAAP, SEC rule or policy or applicable Law; and (evii) any revaluation by the Company or Parent of any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs writing down the value of capitalized inventory or write-offs of writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice practice, (viii) any changes in the vesting schedules of outstanding Parent Options or as required by GAAPParent Warrants, SEC rule or policy (ix) any grant of stock options or applicable Lawwarrants prior to the date of this Agreement other than grants to new employees in connection with the commencement of their employment.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Eagle Wireless International Inc)
Absence of Certain Changes or Events. From Except as otherwise set forth on Schedule 5.06 of the Parent Disclosure Schedule, since June 30, 20072004, through Parent and the date hereof, the Company and each of its Parent Subsidiaries have conducted their business businesses only in the ordinary course of such business consistent with past practicepractice and, except as contemplated by since such date, there has not been (i) any Parent Material Adverse Effect, (ii) any event that could reasonably be expected to prevent or materially delay the performance of Parent’s obligations pursuant to this Agreement and the consummation of the Merger by Parent, (iii) any material change by Parent in connection its accounting methods, principles or practices, (iv) any declaration, setting aside or payment of any dividend or distribution in respect of the shares of Parent Common Stock or any redemption, purchase or other acquisition of any of Parent’s securities, other than unvested shares of Parent Common Stock repurchased by the Parent, at the original price paid per share, from employees, consultants and directors upon the termination of their service relationship with the Merger and the transactions contemplated thereby. From June 30Parent or any Parent Subsidiary, 2007(v) any issuance or sale of any stock, through the date hereofnotes, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction bonds or series of transactions material other securities other than pursuant to the Company and its Subsidiaries in exercise of stock options currently outstanding or hereafter granted under the aggregateParent Stock Plans or purchase rights currently outstanding or hereafter granted under the Parent ESPP, or entering into any agreement with respect thereto, (vi) any amendment to the Parent’s certificate of incorporation or bylaws, (vii) other than in the ordinary course of business consistent with past practicepractices, and there have not been any (a) purchase, sale, assignment or transfer of any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; material assets, (b) mortgage, pledge or the institution of any issuance by lien, encumbrance or charge on any material assets or properties, tangible or intangible, except for liens for taxes not yet delinquent and such other liens, encumbrances or charges which do not, individually or in the Companyaggregate, have a Parent Material Adverse Effect, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) waiver of any repurchase, redemption rights of material value or cancellation or any other acquisition by the Company material debts or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Law.claims,
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Epoch Biosciences Inc)
Absence of Certain Changes or Events. From June Except as disclosed in the Merry Land SEC Documents or Schedule 2.7 to the Merry Land Disclosure Letter, since September 30, 2007, through 2002 (the date hereof, “Merry Land Financial Statement Date”) Merry Land and the Company and each of its Merry Land Subsidiaries have conducted their business only in the ordinary course (taking into account prior practices, including the acquisition and sale of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger properties and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any issuance of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, securities) and there have has not been (a) any Effects on material adverse change in the business, financial condition or with respect to results of operations of Merry Land and the Company that constitute Merry Land Subsidiaries taken as a whole (a “Merry Land Material Adverse Effect on Change”), nor has there been any occurrence or circumstance that with the Company; passage of time would reasonably be expected to result in a Merry Land Material Adverse Change, (b) any issuance by the Companydeclaration, setting aside or agreement payment of any dividend or commitment of the Company to issueother distribution (whether in cash, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (iproperty) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued with respect to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock)Merry Land Shares, or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchasesplit, redemption combination or reclassification of any of Merry Land Shares or any other acquisition by issuance or the Company or its Subsidiaries authorization of any outstanding issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of capital stock its beneficial interest or other securities of, or other any issuance of an ownership interests interest in, the Company or its Subsidiariesany Merry Land Subsidiary except as contemplated by this Agreement, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principlesdamage, practices destruction or methodsloss, except as required whether or not covered by GAAPinsurance, SEC rule that has or policy would have a Merry Land Material Adverse Effect, or applicable Law; and (e) any revaluation change made prior to the date of this Agreement in accounting methods, principles or practices by the Company Merry Land or any of Merry Land Subsidiary materially affecting its Subsidiaries assets, liabilities or business, except insofar as may have been disclosed in Merry Land SEC Documents or required by a change in GAAP or (f) any amendment of any material amount employment, consulting, severance, retention or any other agreement between Merry Land and any officer or director of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable LawMerry Land.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Merry Land Properties Inc)
Absence of Certain Changes or Events. From At Closing, Company shall own fifty percent (50%) of the membership interests in each of Tecstar Manufacturing Canada Limited, a Nova Scotia limited company ("Tecstar Canada"), Tesctar, LLC, an Indiana limited liability company ("Tecstar USA"), and Tarxien Automotive Products Limited, a Nova Scotia limited company ("Tarxien"). Since June 30, 2007, through the date hereof2003, the Company has conducted its business only in the ordinary course consistent with past practice and each there has not occurred any event or condition which has or may reasonably be expected to have a Material Adverse Effect including, and without limiting the generality of its Subsidiaries have conducted their business the foregoing, the Company has not (a) incurred any obligation or liability, secured or unsecured (whether accrued, absolute, contingent or otherwise), whether due or to become due, except current liabilities in the ordinary course of such business consistent with past practice or those reflected on the Unaudited Financial Statements, (b) discharged or satisfied any Lien (except for Permitted Liens) or paid any obligation or liability, except current liabilities becoming due in the ordinary course of business consistent with past practice, (c) mortgaged, pledged or subjected to a Lien (except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor for Permitted Liens) any of its Subsidiaries has engaged in the Company's properties or assets, (d) sold, transferred, licensed or otherwise disposed of any transaction of the Company's properties or series of transactions material to the Company and its Subsidiaries in the aggregate, assets other than in the ordinary course of business consistent with past practice, and there (e) increased the compensation payable or to become payable by it to any of its directors, officers, salaried employees or agents whose total annual individual compensation for services rendered after any such increase is more than One Hundred Thousand ($100,000) Dollars, except as provided by an agreement either written or oral, the terms of which have not been (a) disclosed to Parent, or made any Effects on bonus, percentage of compensation or with respect other like benefit accruing to or for the Company that constitute a Material Adverse Effect on the Company; (b) credit of any issuance by such directors, officers, employees, consultants or agents of the Company, except in accordance with a Company Benefit Plan (as defined below), (f) terminated or agreement received any notice of termination of any material contract, license, lease, trademark, patent, patent application, copyright or commitment trade name protection or other agreement, (g) suffered any damage, destruction or loss (whether or not covered by insurance) adversely affecting the Company's properties or assets, (h) suffered any taking or seizure of all or any part of the Company to issueCompany's properties or assets by condemnation or eminent domain, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Optionsexperienced any material change in its relations with its vendors, Restricted Stock suppliers, lenders, dealers, distributors, customers, employees, consultants or agents, (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards)j) except as disclosed on Schedule 3.08, Restricted Stock Unit Awards, Company Common Stock issued to acquired any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities ofof any corporation or any interest in any business enterprise or otherwise made any loan or advance to or investment in any person, firm or corporation (other ownership interests inthan advances to employees in the ordinary course of business consistent with past practice), (k) made any capital expenditures or capital additions exceeding One Hundred Fifty Thousand ($150,000) Dollars singly or Two Hundred Thousand ($200,000) Dollars in the Company aggregate, (1) instituted, settled or agreed to settle any litigation, action or proceeding before any court or governmental body affecting its financial condition, its property or its Subsidiariesbusiness operations involving a claim in excess of Twenty Thousand ($20,000) Dollars, other than pursuant to publicly disclosed stock repurchase programs (m) made any purchase commitment in excess of normal ordinary and usual requirements or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) made any material change in accounting principlesits selling, pricing or personnel practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice practice, (n) made any change in accounting principles or as required methods or in the manner of keeping books, accounts and records of the Company which is, or may be, inconsistent with the principles or methodology by GAAPwhich the Unaudited Financial Statements have been prepared, SEC rule (o) entered into any contract, agreement, lease or policy other arrangement or applicable Lawtransaction or taken any other action, except in the ordinary course of business consistent with past practice, (p) changed the authorized capital stock of the Company, redeemed any capital stock of the Company, issued, sold or otherwise disposed of any capital stock of the Company or any option to acquire capital stock of the Company or any securities convertible into or exchangeable for capital stock of the Company, or entered into any agreements creating funded indebtedness of the Company, (q) made any declaration, setting aside or payment of any dividend or any other distribution (whether in cash, stock or property) in respect of its capital stock, or (r) entered into any agreement or made any commitment to do any of the things described in the preceding subsections (a) through (q) of this Section 3.08.
Appears in 1 contract
Absence of Certain Changes or Events. From June Since September 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice2000, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, or except as disclosed in the Company Katy SEC DocumentsReports or in this Agreement (including the schedules hereto) and except as permitted pursuant to Section 5.1, neither Katy and the Company nor any of its ----------- Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than have conducted their businesses only in the ordinary course of business consistent with past practiceand usual course, and there have has not been (ai) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the CompanyKaty Group; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change by Katy or any Subsidiary in its accounting principles, practices or methods, except principles or practices other than as required by GAAP, SEC rule or policy GAAP or applicable Lawlaw; and (eiii) any revaluation by the Company Katy or any of its Subsidiaries Subsidiary of any material amount of their respective assets, taken as a whole, including, without limitation, write-downs writing down the value of inventory or write-offs of writing off notes or accounts receivable other than in the ordinary course of business; (iv) any entry by Katy or any Subsidiary into any material commitment or transaction, other than in the ordinary course of business; (v) any declaration, setting aside or payment of any dividends or distributions in respect of Common Shares or any redemption, purchase or other acquisition of any of its securities or any securities of Katy or any Subsidiary, except for regular dividends not in excess of $0.075 per Common Share per quarter; (vi) any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business consistent with past practice of Katy or any Subsidiary; (vii) any increase in indebtedness for borrowed money other than an increase as a result of indebtedness for borrowings incurred in the ordinary course of business; (viii) any granting of a security interest in or lien on any material property or assets of Katy or any Subsidiary, other than any such security interest or lien permitted by the Amended and Restated Credit Agreement dated as of December 11, 1998 among Katy, Bank of America National Trust and Savings Association, La Salle National Bank, and the other parties named therein (including, without limitation, such security interests or liens contemplated by the definitions of "Perfection Date" and "Permitted Liens" under that Agreement); or (ix) except as disclosed in Schedule 3.14, any increase in or ------------- establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan or any other increase in the compensation payable or to become payable to any officers or key employees of Katy or any Subsidiary other than those that are required by GAAP, SEC rule or policy or applicable Lawunder existing contractual arrangements and other than increases in base salaries in the ordinary course of business.
Appears in 1 contract
Samples: Preferred Stock Purchase and Recapitalization Agreement (Katy Industries Inc)
Absence of Certain Changes or Events. From June 30Except as disclosed in the Bancshares Reports filed prior to the date of this Agreement or in the Bancshares Disclosure Letter, 2007and except as contemplated by this Agreement, from and after January 1, 1998 through the date hereof, the Company of this Agreement: (a) Bancshares and each of its Subsidiaries Liberty have conducted their business respective businesses only in the ordinary and usual course consistent with past practice, (b) neither Bancshares nor Liberty have amended their respective charters, (c) Bancshares has not granted any option for the purchase of its capital stock, effected any stock split, or otherwise changed its capitalization, (d) Bancshares has not declared, set aside or paid any dividend or other distribution in respect to any of its capital stock, (e) neither Bancshares, nor Liberty has issued or sold any of its capital stock, or issued or sold any corporate debt securities or otherwise incurred debt which would be classified as long term on the balance sheet, (f) Bancshares has not (i) incurred any material obligations or liability (absolute or contingent), except obligations or liabilities incurred in the ordinary course of such business consistent with past practicebusiness, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30or (ii) mortgaged, 2007pledged, through the date hereofor subjected to lien, except as disclosed in the Company SEC Documentsclaim, neither the Company nor security interest, charge, encumbrance or restriction any of its Subsidiaries assets or properties, (g) Bancshares has engaged in not discharged or set aside any transaction material lien, mortgage, pledge, claim, security interest, charge, encumbrance, or series of transactions restriction or paid any material to the Company and its Subsidiaries in the aggregateobligation or liability (absolute or contingent), other than in the ordinary course of business consistent with past practice(h) Bancshares has not sold, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companyassigned, transferred, leased, exchanged, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities otherwise disposed of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent business, any of its properties or assets, (i) Bancshares has not increased the rate of compensation of, or paid any bonus to, any of its directors or officers, except merit or promotion increases in accordance with past practice existing policies; entered into any new, or as required by GAAPamended or supplemented any existing, SEC rule employment, management, consulting, deferred compensation, severance, or policy other similar contract not heretofore provided to Sac River; adopted, entered into, terminated, amended or applicable Law.modified any Bancshares Benefit Plan in respect to any of its present or former directors, officers or other employees; or agreed to any of the foregoing, (j) Bancshares has not suffered any material damage,
Appears in 1 contract
Samples: Agreement and Plan of Merger (Liberty Bancshares Inc /Mo)
Absence of Certain Changes or Events. From June Except as disclosed in the Buyer SEC Reports filed prior to the date of this Agreement, since September 30, 2007, through 1998 to the date hereofof this Agreement, the Company Buyer and each of its the Buyer Subsidiaries have conducted their business businesses only in the ordinary course of such business and in a manner consistent with past practicepractice and, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June since September 30, 20071998, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries there has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on change in the financial condition, results of operations or with respect to business of the Company that constitute Buyer or any of the Buyer Subsidiaries having a Material Adverse Effect on the Company; Buyer and the Buyer Subsidiaries taken as a whole, (b) any issuance damage, destruction or loss (whether or not covered by the Company, or agreement or commitment insurance) with respect to any assets of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Buyer or any of its the Buyer Subsidiaries of any material amount of their assetshaving a Material Adverse Effect on the Buyer and the Buyer Subsidiaries, taken as a whole, including(c) any change by the Buyer or any Buyer Subsidiaries in its accounting methods, without limitationprinciples or practices, write-downs (d) any revaluation by the Buyer or any Buyer Subsidiaries of inventory any of its assets in any respect, (e) to the date of this Agreement, any entry by the Buyer or write-offs any of accounts receivable the Buyer Subsidiaries into any commitment or transactions material to the Buyer and the Buyer Subsidiaries taken as a whole or (f) except for repurchases pursuant to the Buyer's Common Stock repurchase program or for regular quarterly cash dividends of Buyer Common Stock with usual record and payment dates, to the date of this Agreement, any declaration, setting aside or payment of any dividends or distributions in respect of shares of Buyer Common Stock or any redemption, purchase or other than in acquisition of any of its securities or any of the ordinary course securities of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Lawany Buyer Subsidiary.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30Except for entering into this Agreement and except as set forth in FOFC Disclosure Schedule 3.25 (in each case, 2007identified by the appropriate paragraph of this Section 3.25), through the date hereofsince December 31, the Company 2009: FOFC and each of its Subsidiaries Capital Bank have conducted their business respective businesses only in the ordinary and usual course of such businesses consistent with their past practices; there has not been any event or occurrence that has had, or is reasonably expected to have, a Material Adverse Effect on FOFC or Capital Bank; FOFC and Capital Bank have not declared, paid or set aside any dividends or distributions with respect to the FOFC Common Stock; except for supplies or equipment purchased in the ordinary course of such business consistent with past practicebusiness, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed neither FOFC nor Capital Bank has made any capital expenditures exceeding individually or in the Company SEC Documents, neither the Company nor aggregate $50,000; there has not been any write-down or specific reserve established by Capital Bank in excess of $250,000 with respect to any of its Subsidiaries loans or OREO; there has engaged not been any sale, assignment or transfer of any assets by FOFC or Capital Bank in any transaction or series excess of transactions material to the Company and its Subsidiaries in the aggregate, $50,000 other than in the ordinary course of business consistent with past practicebusiness; there has been no increase in the salary, and there have not been (a) compensation, pension or other benefits payable or to become payable by FOFC or Capital Bank to any Effects on of their respective directors, officers or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stockemployees, other than (iin conformity with the policies and practices of such entity in the usual and ordinary course of its business; Except as set forth in Section 3.25(h) grants of Company Stock Optionsthe FOFC Disclosure Schedule, Restricted Stock (and Stock Unit Awards issued in lieu neither FOFC nor Capital Bank has paid or made any accrual or arrangement for payment of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued bonuses or special compensation of any kind or any severance or termination pay to any director who elects to receive compensation in the form of stock rather than cash (their directors, officers or employees; and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant there has been no change in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except methods of FOFC or Capital Bank other than as required by GAAP. Affiliate Transactions. All "covered transactions" between FOFC and Capital Bank and an "Affiliate" within the meaning of Sections 23A and 23B of the Federal Reserve Act and the FRB regulations thereunder have been in compliance with such provisions. Except as set forth in FOFC Disclosure Schedule 3.26(b), SEC rule neither FOFC nor Capital Bank is a party to any transaction (including any loan or policy other credit accommodation) with any Affiliate of FOFC or applicable Law; and Capital Bank. All such transactions set forth therein: (ei) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than were made in the ordinary course of business consistent business; (b) were made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with past practice other Persons; and (c) did not involve more than the normal risk of collectability or as required present other unfavorable features. No loan or credit accommodation to any Affiliate of FOFC or Capital Bank is presently in default or, during the three-year period prior to the date of this Agreement, has been in default or has been restructured, modified or extended. Neither FOFC nor Capital Bank has been notified that principal and interest with respect to any such loan or other credit accommodation will not be paid when due. No Regulatory Authority has informed FOFC or Capital Bank that the loan grade classification accorded such loan or credit accommodation by GAAP, SEC rule FOFC or policy or applicable LawCapital Bank is inappropriate.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chemung Financial Corp)
Absence of Certain Changes or Events. From June 30Except in order to fulfill the obligations created by this Agreement and to complete the transactions contemplated herein, 2007, through from the date hereofof this Agreement until the completion of the Closing (as described below) Jade will: (a) not incur any liability or obligation whatsoever, the Company and each of its Subsidiaries have conducted their business secured or unsecured, direct or indirect, other than in the ordinary and usual course of such business consistent with past practiceits business; (b) not enter into any contracts or agreements whatsoever, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed other than in the Company SEC Documents, neither the Company nor ordinary and usual conduct and course of its business; (c) not change any of its Subsidiaries has engaged accounting methods, principles, practices or policies; (d) not cease to operate its properties and to carry on its business as heretofore carried on, nor fail to maintain all of its properties, rights and assets consistently with past practices; (e) not sell or otherwise in any transaction way alienate or series dispose of transactions material to the Company and any of its Subsidiaries in the aggregate, assets other than in the ordinary course of business and in a manner consistent with past practicepractices; (f) not modify its articles of incorporation, bylaws or capital structure; (g) not make any modification to its authorized or issued shares, nor redeem, retire, repurchase or otherwise acquire, nor issue, sell or otherwise dispose of, shares of its capital stock other equity interests or warrants, bonds or rights in its own capital, (h) not make any distribution, by way of dividend or otherwise, to any of its shareholders or to any affiliate or associate thereof, or reserve or declare any dividend; (i) not make any material change in the form of compensation or remuneration payable or to become payable to any of its shareholders, directors, officers, employees or agents nor in the rate thereof; (j) other than the ordinary course of business, not grant to any customer any special allowance or discount, or change its pricing, credit or payment policies; (k) not make any loan or advance, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of any person; (l) not permit, cause or suffer any extraordinary losses not covered by insurance; (m) not remove any director or auditor or terminate any officer or have any of the foregoing resign; (n) not purchase or otherwise acquire any shares or other equity interest, as the case may be, in any person. Jade further represents that (o) it is not currently facing any action or suit, proceeding, inquiry, or any threat thereof, against or affecting Jade at law or in equity or before or by any foreign, federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality which may in any way materially and adversely affect Jade; (p) except as described in Jade's financial statements, there have not been any transactions, agreements, arrangements or payments (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs salaries, bonuses, royalties or fees) relating to or affecting Jade or its business: (i) involving any related entity of inventory Jade, (ii) involving any current or write-offs former director, officer, shareholder of accounts receivable Jade, or (iii) involving any member of the immediate family of any individual described in clause (ii) above, (iv) involving any other than in the ordinary course of business consistent person not acting at arm's length with past practice Jade or as required by GAAP, SEC rule or policy or applicable Law(v) not otherwise at arm's length.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof the Original Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From Agreement, since June 30, 20072006, through the date hereofthere has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent’s capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (vii) any issuance of capital stock of Parent, or policy (viii) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30Agreement, 2007, through since the date hereofof the most recent Parent Financial Statement, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent’s capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (vii) any issuance of capital stock of Parent, or policy (viii) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Long Blockchain Corp.)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June Agreement, since September 30, 2007, 2014 through the date hereofof this Agreement, except as disclosed in the Company SEC Documents, neither the Company nor there has not been: (i) any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company Material Adverse Effect on Parent and its Subsidiaries taken as a whole, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in the aggregatecash, stock or property) in respect of, any of Parent’s capital stock, or any purchase, redemption or other than acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition payment by the Company or its Subsidiaries Parent of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methodsbonus, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than for bonuses made in the ordinary course of business consistent with past practice practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (v) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vi) any change in the auditors of Parent, (vi) any issuance of capital stock of Parent, (vii) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or policy writing off notes or applicable Lawaccounts receivable or any sale of assets of Parent other than in the ordinary course of business, (viii) any incurrence by Parent of Indebtedness or (ix) any agreement, whether written or oral, to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cullen Agricultural Holding Corp)
Absence of Certain Changes or Events. From Except as otherwise set forth on SCHEDULE 5.08 of the Parent Disclosure Schedule, since June 30, 2007, through 2001 and prior to the date hereof, there has not been (i) any event that could reasonably be expected to prevent or materially delay the Company and each performance of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by Parent's obligations pursuant to this Agreement in connection with and the consummation of the Merger and by Parent, (ii) any material change by Parent or any Parent Subsidiary in its accounting methods, principles or practices, (iii) any declaration, setting aside or payment of any dividend or distribution in respect of the transactions contemplated thereby. From June 30Parent Common Stock or any redemption, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor purchase or other acquisition by Parent of any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregateParent's securities, other than (iv) except in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation increase in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), compensation or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, benefits or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries establishment of any outstanding shares of capital stock or other securities ofbonus, or other ownership interests ininsurance, the Company or its Subsidiariesseverance, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principlescontrol, practices or methodsdeferred compensation, except as required by GAAPpension, SEC rule or policy or applicable Law; and retirement, profit sharing, stock option (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs the granting of inventory stock options, stock appreciation rights, performance awards or write-offs restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers of accounts receivable Parent or any Parent Subsidiary, (v) any issuance or sale by Parent or any Parent Subsidiary of any stock, notes, bonds or other securities other than pursuant to the exercise of outstanding securities, or entering into any agreement with respect thereto, (vi) any amendment to Parent's Certificate of Incorporation or bylaws, (vii) other than in the ordinary course of business business, any (x) purchase, sale, assignment or transfer of any material assets by Parent or any Parent Subsidiary, (y) mortgage, pledge or the institution of any lien, encumbrance or charge on any material assets or properties, tangible or intangible, of Parent or any Parent Subsidiary, except for liens for Taxes not yet delinquent and such other liens, encumbrances or charges which do not have, and could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, or (z) waiver by Parent or any Parent Subsidiary of any rights of material value or cancellation or any material debts or claims, or (viii) any entering into by Parent or any Parent Subsidiary of any transaction of a material nature other than in the ordinary course of business, consistent with past practice or as required by GAAP, SEC rule or policy or applicable Law.practices. 36
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since December 31, 2006, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with the Merger and the transactions contemplated thereby. From June 30cash, 2007stock or property) in respect of, through the date hereofany of Parent’s capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, SEC rule (vii) any change in the auditors of Parent, (viii) any issuance of capital stock of Parent, or policy (ix) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mandalay Media, Inc.)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30Agreement, 2007, through since the date hereofof the most recent Parent Financial Statement, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, or property) in respect of, any of Parent’s capital stock, or any purchase, redemption, or other acquisition by Parent of any of Parent’s capital stock or any other securities of Parent or any options, warrants, calls, or rights to acquire any such stock or other securities, (iii) any split, combination, or reclassification of any of Parent’s capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination, or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles, or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (viii) any issuance of capital stock of Parent, or policy (ix) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Black Ridge Acquisition Corp.)
Absence of Certain Changes or Events. From June 30Other than as set forth in Section 3.10 to the Company Disclosure Schedule from December 31, 2007, 1997 through the date hereofof this Merger Agreement, there has been no material adverse change, and no change except in the Ordinary Course of Business, in the business, operations, prospects, condition (financial or otherwise), Assets or liabilities of the Company or any Subsidiary. Except as disclosed pursuant to other provisions of this Merger Agreement or described in the Company Disclosure Schedule, since November 30, 1998, the Company and each of its the Subsidiaries have conducted their business respective businesses substantially in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger manner theretofore conducted and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed only in the Company SEC DocumentsOrdinary Course of Business, and neither the Company nor any Subsidiary has (a) incurred any material damage, destruction or loss not covered by insurance with respect to any Assets of the Company or of any such Subsidiary; (b) issued any capital stock or other equity securities or granted any options, warrants or other rights calling for the issuance thereof; (c) issued any bonds or other long-term debt instruments, granted any options, warrants or other rights calling for the issuance thereof, or borrowed any funds; (d) incurred, or become subject to, any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown), except current liabilities incurred in the Ordinary Course of Business; (e) discharged or satisfied any Encumbrance or paid any material obligation or liability (whether absolute or contingent, matured or unmatured, known or unknown) other than current liabilities shown in the Unaudited Balance Sheets and current liabilities incurred since December 31, 1997 in the Ordinary Course of Business; (f) declared or made payment of, or set aside for payment, any dividends or distributions of any Assets, or purchased, redeemed or otherwise acquired any of its Subsidiaries has engaged capital stock, any securities convertible into capital stock, or any other securities; (g) mortgaged, pledged or subjected to any Encumbrance (other than a Permitted Encumbrance) any of its Assets; (h) sold, exchanged, transferred or otherwise disposed of any of its Assets, or canceled any debts or claims, except in each case in the Ordinary Course of Business; (i) written down the value of any transaction Assets or series of transactions material written off as uncollectable any debt, notes or accounts receivable, except to the Company extent previously reserved against in the Financial Statements and its Subsidiaries not material in amount, and except for write-downs and write-offs in the Ordinary Course of Business, none of which, individually or in the aggregate, are material; (j) entered into any transactions other than in the ordinary course Ordinary Course of business consistent Business; (k) increased the rate of compensation payable, or to become payable, by it to any of its officers, employees, agents or independent contractors over the rate being paid to them on November 30, 1998, except for any increase in the rate of compensation payable, or to become payable in connection with past practicenormal employee salary and performance reviews or otherwise in the Ordinary Course of Business; (l) made or permitted any amendment or termination of any material Agreement to which it is a party other than in the Ordinary Course of Business; (m) through negotiation or otherwise made any commitment or incurred any liability to any labor organization; (n) made any accrual or arrangement for or payment of bonuses or special compensation of any kind to any director, officer or employee, except for any accrual or arrangement for or payment of bonuses or special compensation in connection with normal employee salary and there have performance reviews or otherwise in the Ordinary Course of Business; (o) directly or indirectly paid any severance or termination pay in excess of two months' salary to any officer or employee with an annual salary in excess of $70,000; (p) made capital expenditures, or entered into commitments therefor, not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on provided for in the Company; 's capital budget for 1998 (b) any issuance a copy of which has been furnished by the Company, or agreement or commitment of the Company to issueAcquiror) or, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as if applicable, the Company's capital budget for 1999 (a copy of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition which has been furnished by the Company or its Subsidiaries of to Acquiror), except for capital expenditures permitted by Section 5.01; (q) made any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant change in any Company Equity Plan, as permitted by the terms method of such plan; (d) any material change in accounting principles, practices or methods, accounting practice except as required by GAAP, SEC rule GAAP and except as specified in the Financial Statements; (r) entered into any transaction of the type described in Section 3.19; (s) made any charitable contributions or policy pledges exceeding $10,000 individually or applicable Law$100,000 in the aggregate; and or (et) made any revaluation by the Company or Agreement to do any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Lawforegoing.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30December 31, 2007, 2011 through the date hereofof this Agreement, except in connection with this Agreement and the transactions contemplated herein (i) each of the Company and each of the Company Subsidiaries has conducted its Subsidiaries have conducted their business in all material respects in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and (ii) there have has not been (aA) any Effects on event, change, occurrence or effect which has had or would reasonably be expected to have a Material Adverse Effect, (B) any declaration, setting aside or payment of any dividend or other distribution in cash, shares, property or otherwise in respect of the Company’s or any of the Company Subsidiaries’ share capital, except for any dividend or distribution by a Company Subsidiary to the Company or another Company Subsidiary thereof, (C) any redemption, repurchase or other acquisition of any shares of share capital of the Company or any of the Company Subsidiaries by the Company or any Company Subsidiaries (other than (1) the acquisition of Shares tendered by Founder or any Person controlled by him in connection with the issuance by the Company of Shares upon the vesting, settlement and/or exercise of equity awards granted under any Company Plan and (2) the repurchase of ADSs in accordance with the share repurchase program approved by the board of directors of the Company and announced publicly in August 2011), (D) any material change by the Company in its accounting principles, except as may be appropriate to conform to changes in statutory or regulatory accounting rules or GAAP or regulatory requirements with respect thereto, or (E) with respect to the Company that constitute a Material Adverse Effect on the Company; (b) or any issuance by the Company, or agreement or commitment of the Company to issueSubsidiary, any shares material Tax election made, changed or revoked; any release, assignment, settlement or compromise of capital stock any material Tax liability or securities convertible into surrender of any refund; any adoption of or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued change to any director who elects to receive compensation in the form method of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption Tax accounting or any other acquisition by the Company or its Subsidiaries annual Tax accounting period; any filing of an amended Tax Return; any outstanding shares incurrence of capital stock or other securities an obligation to make any payment of, or other ownership interests inin respect of, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, Taxes except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice business; or as required by GAAP, SEC rule any agreement to extend or policy waive the statutory period of limitations for the assessment or applicable Lawcollection of Taxes.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business Except as disclosed in the ordinary course of such business consistent with past practice, except Carpatsky Disclosure Schedule or as contemplated by this Agreement or as set forth in connection with Schedule 4.08 to the Merger and the transactions contemplated thereby. From Carpatsky Disclosure Schedule, since June 30, 20071998, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any each of its Subsidiaries has engaged in any transaction or series of transactions material to the Company Carpatsky and its Subsidiaries in subsidiaries, including the aggregateRepresentative Office, other than has conducted its business in the ordinary course of business consistent with past practice. Except as disclosed in Schedule 4.08 to the Carpatsky Disclosure Schedule, and since June 30, 1998, there have has not been (ai) any Effects on event, change, or effect (including the occurrence of any liabilities of any nature, whether or not accrued, contingent or otherwise) having or, which would be reasonably likely to have, individually or in the aggregate, a Carpatsky Material Adverse Effect; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companyequity interests of Carpatsky or, or agreement or commitment upon consummation of the Company to issueRedomestication, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption New Carpatsky or any redemption, purchase or other acquisition by Carpatsky or, or upon consummation of the Company or its Subsidiaries Redomestication, New Carpatsky of any outstanding shares of capital stock or other securities ofCarpatsky's or, or other ownership interests inupon consummation of the Redomestication, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such planNew Carpatsky's securities; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (eiii) any revaluation by the Company or any Carpatsky of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs including the writing down of the value of inventory or write-offs the writing down or off of its proven reserves or notes or accounts receivable receivable, other than in the ordinary course of business and consistent with past practice practices; (iv) any change by Carpatsky in accounting principles or methods, except insofar as may be required by GAAP, SEC rule a change in generally accepted Canadian accounting principles; except that in connection with the Merger Carpatsky shall change its fiscal year to end on December 31 of each year; (v) a fundamental change in the nature of Carpatsky's business; or policy or applicable Law(vi) a Carpatsky Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pease Oil & Gas Co /Co/)
Absence of Certain Changes or Events. From June 30, 2007, through Except as disclosed in the NU SEC Documents filed pursuant to the Securities Act or the Exchange Act and publicly available prior to the date hereofof this Agreement (the "Previously Filed NU SEC Documents"), since December 31, 1998, to the Company date of this Agreement, (i) NU and each of its the NU Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than respective businesses only in the ordinary course of business consistent with past practice and (ii) there has not been, and no fact or condition exists which, individually or in the aggregate, would have a Material Adverse Effect on NU. Except as disclosed in the Previously Filed NU SEC Documents, from December 31, 1998 through the date of this Agreement, there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any equity interest of NU, (ii) any split, combination or reclassification of any equity interest of NU or any issuance or the authorization of any issuance of any equity interest of NU or NU Voting Debt or any other securities in respect of, in lieu of or in substitution for any equity interest of NU, except for issuances of NU Common Shares under the NU Stock Plans in accordance with their present terms or upon exercise of outstanding NU Stock Options, or (iii) except as may have been required by a change in GAAP, SEC rule any change in accounting methods, principles or policy practices by NU or applicable Lawany NU Subsidiary materially affecting their respective assets, liabilities or business. As of the date of this Agreement, none of (i) the Agreement and Plan of Merger (the "Yankee Merger Agreement") dated as of June 14, 1999 among Yankee Energy System, Inc. ("Yankee") and NU, (ii) the Purchase and Sale Agreement (the "CL&P/NGC Sale Agreement") dated July 2, 1999 between The Connecticut Light and Power Company ("CL&P") and Northeast Generation Company ("NGC"), (iii) the Purchase and Sale Agreement (the "NRG Sale Agreement") dated July 1, 1999, between CL&P and NRG, Inc. (the "NRG Sale Agreement") and (iv) the Purchase and Sale Agreement (the "WMECO/NGC Sale Agreement") dated July 2, 1999, between Western Massachusetts Electric Company ("WMECO") and NGC.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Consolidated Edison Inc)
Absence of Certain Changes or Events. From Except as disclosed on --------------------------------------- Section 4.7 of the Seller Disclosure Schedule, in any Current Reports of the Seller on Form 8-K filed prior to the date of this Agreement, in the Seller's proxy statement filed with respect to its 2003 Annual Meeting of stockholders, in the Seller's Annual Report on Form 10-K for the year ended December 31, 2002, in the Seller's Quarterly Report on Form 10-Q for the period ended June 30, 20072003, through the date hereofor as otherwise expressly permitted or expressly contemplated by this Agreement, since June 30, 2003, the Company Seller and each its subsidiaries have not incurred any material liability or obligation of its Subsidiaries have conducted their business any nature (whether accrued, absolute, contingent or otherwise and whether due or to become due) not otherwise disclosed in the Seller Disclosure Schedule, except in the ordinary course of their business consistent with their past practices or in connection with this Agreement and the transactions contemplated hereby, nor has there been (a) any change in the business, assets, financial condition or results of operations of the Seller or any of its subsidiaries which has had, or is reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on the Seller or any of its subsidiaries, and, to the best knowledge of the Seller, no fact or condition exists which is reasonably likely to cause such a Material Adverse Effect in the future, (b) any change by the Seller or any of its subsidiaries in its accounting methods, principles or practices, other than changes required by applicable law or GAAP or regulatory accounting as concurred in by the Seller's independent accountants, (c) any entry by the Seller or any of its subsidiaries into any contract or commitment of more than $150,000 or with a term of more than one (1) year other than loans and loan commitments and borrowings in the ordinary course of business and consistent with past practice, except as contemplated by this Agreement (d) any declaration, setting aside or payment of any dividend or distribution in connection with respect of any capital stock of the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor Seller or any of its Subsidiaries has engaged in subsidiaries or any transaction redemption, purchase or series other acquisition of transactions material to the Company and any of its Subsidiaries in the aggregatesecurities, other than in the ordinary course of business consistent with past practice, and there have not been (ae) any Effects on increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or employees of the Seller or any of its subsidiaries, or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any action not in the ordinary course of business with respect to the Company that constitute a Material Adverse Effect on compensation or employment of directors, officers or employees of the Company; Seller or any of its subsidiaries, (bf) any issuance material election made by the Company, Seller or agreement any of its subsidiaries for federal or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory state income tax purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (dg) any material change in accounting principles, practices the credit policies or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by procedures of the Company Seller or any of its Subsidiaries subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any material respect, (h) any material acquisition or disposition of any material amount of their assetsassets or properties, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable any contract for any such acquisition or disposition entered into other than loans and loan commitments, or (i) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Lawpractice.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Thistle Group Holdings Co)
Absence of Certain Changes or Events. From June 30Except in order to fulfill the obligations created by this Agreement and to complete the transactions contemplated herein, 2007, through from the date hereofof this Agreement until the completion of the Closing (as described below) Hengyi will: (i) not incur any liability or obligation whatsoever, the Company and each of its Subsidiaries have conducted their business secured or unsecured, direct or indirect, other than in the ordinary and usual course of such business consistent with past practiceits business; (ii) not enter into any contracts or agreements whatsoever, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed other than in the Company SEC Documents, neither the Company nor ordinary and usual conduct and course of its business; (iii) not change any of its Subsidiaries has engaged accounting methods, principles, practices or policies; (iv) not cease to operate its properties and to carry on its business as heretofore carried on, nor fail to maintain all of its properties, rights and assets consistently with past practices; (v) not sell or otherwise in any transaction way alienate or series dispose of transactions material to the Company and any of its Subsidiaries in the aggregate, assets other than in the ordinary course of business and in a manner consistent with past practicepractices; (vi) not modify its Articles of Incorporation, Bylaws or capital structure; (vii) not make any modification to its authorized or issued shares, nor redeem, retire, repurchase or otherwise acquire, nor issue, sell or otherwise dispose of, shares of its capital stock other equity interests or warrants, bonds or rights in its own capital, (viii) not make any distribution, by way of dividend or otherwise, to any of its shareholders or to any affiliate or associate thereof, or reserve or declare any dividend; (ix) not make any material change in the form of compensation or remuneration payable or to become payable to any of its shareholders, directors, officers, employees or agents nor in the rate thereof; (x) other than the ordinary course of business, not grant to any customer any special allowance or discount, or change its pricing, credit or payment policies; (xii) not permit, cause or suffer any extraordinary losses not covered by insurance; (xiii) not remove any director or auditor or terminate any officer or have any of the foregoing resign; (xiv) not purchase or otherwise acquire any shares or other equity interest, as the case may be, in any person. Hengyi further represents that (xv) it is not currently facing any action or suit, proceeding, inquiry, or any threat thereof, against or affecting Hengyi at law or in equity or before or by any foreign, national, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality which may in any way materially and adversely affect Hengyi; (xvi) there have not been any transactions, agreements, arrangements or payments (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs salaries, bonuses, royalties or fees) relating to or affecting Hengyi or its business: (A) involving any related entity of inventory Hengyi, (B) involving any current or write-offs former director, officer, shareholder of accounts receivable Hengyi, or (C) involving any member of the immediate family of any individual described in clause (B) above, (D) involving any other than in the ordinary course of business consistent person not acting at arm's length with past practice Hengyi or as required by GAAP, SEC rule or policy or applicable Law(v) not otherwise at arm's length.
Appears in 1 contract
Samples: 2 Share Purchase Agreement (Globus Growth Group Inc)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since January 1, 2006, there has not been: (i) any Material Adverse Effect on Parent or Merger Sub; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with the cash, stock or property) in respect of, any of Parent's or Merger and the transactions contemplated thereby. From June 30Sub's capital stock, 2007or any purchase, through the date hereofredemption or other acquisition by Parent or Merger Sub of any of Parent's or Merger Sub's capital stock or any other securities of Parent or Merger Sub or any options, warrants, calls or rights to acquire any such shares or other securities; (iii) any split, combination or reclassification of any of Parent's or Merger Sub's capital stock; (iv) any granting by Parent or Merger Sub of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on payment by Parent or Merger Sub of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent or Merger Sub of any increase in severance or termination pay or any entry by Parent or Merger Sub into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such planwhich are materially altered upon the occurrence of a transaction involving Parent or Merger Sub of the nature contemplated hereby; (dv) entry by Parent or Merger Sub into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent or Merger Sub with respect to any Governmental Entity; (vi) any material change by Parent or Merger Sub in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP; (vii) any change in the auditors of Parent or Merger Sub; (viii) any issuance of capital stock of Parent or Merger Sub; (ix) any revaluation by Parent or Merger Sub of any of its assets or any sale of assets of Parent or Merger Sub other than in the ordinary course of business; (x) any material claims, SEC rule suits, actions or policy proceedings commenced or applicable Lawsettled by Parent; or (xi) any material transaction or any other material action taken by Parent outside the ordinary course of business or inconsistent with past practices; or (xii) any agreement to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Echo Healthcare Acquisition Corp.)
Absence of Certain Changes or Events. From June Except as disclosed in the SEC Documents and except for this Agreement and the transactions contemplated herein since September 30, 20071998, through the date hereof, the Company Purchaser and each of its Subsidiaries subsidiaries have conducted their business businesses, in all material respects, only in the ordinary course and in a manner consistent with past practice, and there has not occurred any event, condition, circumstance, change or development (whether or not in the ordinary course of such business consistent with past practicebusiness) that, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction individually or series of transactions material to the Company and its Subsidiaries in the aggregate, has had or could reasonably be expected to have a material adverse effect on the financial condition or results of operations of Purchaser and its subsidiaries, taken as a whole, whether or not required by GAAP to be provided or reserved against on a balance sheet prepared in accordance with GAAP (a "Purchaser Material Adverse Effect"). Without limiting the generality of the foregoing, except as set forth on Schedule 5.7 hereto, or as disclosed in any SEC Documents filed with the Commission and publicly available prior to November 1, 1998 or as contemplated herein, since September 30, 1998, there has not been (i) any change by Purchaser in its accounting methods, principles or practices, (ii) any revaluation by the Purchaser of any of its or any of its subsidiary's material assets other than in the ordinary course of business consistent with past practice, and there have not been (aiii) any Effects on or with respect to entry outside the Company that constitute a Material Adverse Effect on the Company; (b) any issuance ordinary course of business by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Purchaser or any of its Subsidiaries of subsidiaries into any material amount of their assetscommitments or transactions material, individually or in the aggregate, to Purchaser and its subsidiaries taken as a whole, (iv) any declaration, setting aside or payment of any dividends or distributions in respect of the shares of Purchaser's capital stock or, any redemption, purchase or other acquisition of any of its securities, or (v) any grant or issuance of any Equity Securities of Purchaser or any of its subsidiaries. "Equity Securities" means, with respect to the Purchaser or any of its subsidiaries, as the case may be, (i) any class or series of common stock, preferred stock or other capital stock, whether voting or non-voting, (ii) any other equity securities issued by Purchaser or such subsidiary, as the case may be, whether now or hereafter authorized for issuance by the Purchaser's or such subsidiary's, as the case may be, Certificate of Incorporation, (iii) any debt, hybrid or other securities issued by Purchaser or such subsidiary, as the case may be, which are convertible into, exercisable for or exchangeable for any other Equity Securities, whether now or hereafter authorized for issuance by Purchaser's or such subsidiary's, as the case may be, Certificate of Incorporation, (iv) any equity equivalents (including, without limitation, write-downs of inventory stock appreciation rights, phantom stock or write-offs of accounts receivable other than similar rights), interests in the ordinary course ownership or earnings of business consistent with past practice Purchaser or such subsidiary, as required by GAAPthe case may be, SEC rule or policy other similar rights, (v) any written or applicable Laworal rights, options, warrants, subscriptions, calls, preemptive rights, rescission rights or other rights to subscribe for, purchase or otherwise acquire any of the foregoing, (vi) any written or oral obligation of the Purchaser or such subsidiary, as the case may be, to issue, deliver or sell, any of the foregoing, (vii) any written or oral obligations of Purchaser or such subsidiary, as the case may be, to repurchase, redeem or otherwise acquire any Equity Securities, and (viii) any bonds, debentures, notes or other indebtedness of Purchaser or such subsidiary, as the case may be, having the right to vote (or convertible into, or exchangeable for securities having the right to vote) on any matters on which the stockholders of Purchaser or such subsidiary, as the case may be, may vote.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Matria Healthcare Inc)
Absence of Certain Changes or Events. From June 30Except in order to fulfill the obligations created by this Agreement and to complete the transactions contemplated herein, 2007, through from the date hereofof this Agreement until the completion of the Closing (as described below) the Corporation will: (a) not incur any liability or obligation whatsoever, the Company and each of its Subsidiaries have conducted their business secured or unsecured, direct or indirect, other than in the ordinary and usual course of such business consistent with past practiceits business; (b) not enter into any contracts or agreements whatsoever, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed other than in the Company SEC Documents, neither the Company nor ordinary and usual conduct and course of its business; (c) not change any of its Subsidiaries has engaged accounting methods, principles, practices or policies; (d) not cease to operate its properties and to carry on its business as heretofore carried on, nor fail to maintain all of its properties, rights and assets consistently with past practices; (e) not sell or otherwise in any transaction way alienate or series dispose of transactions material to the Company and any of its Subsidiaries in the aggregate, assets other than in the ordinary course of business and in a manner consistent with past practicepractices; (f) not modify its articles of incorporation, bylaws or capital structure;(g) not make any modification to its authorized or issued shares, nor redeem, retire, repurchase or otherwise acquire, nor issue, sell or otherwise dispose of, shares of its capital stock other equity interests or warrants, bonds or rights in its own capital, (h) not make any distribution, by way of dividend or otherwise, to any of its shareholders or to any affiliate or associate thereof, or reserve or declare any dividend; (i) not make any material change in the form of compensation or remuneration payable or to become payable to any of its shareholders, directors, officers, employees or agents nor in the rate thereof; (j) other than the ordinary course of business, not grant to any customer any special allowance or discount, or change its pricing, credit or payment policies; (k) not make any loan or advance, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of any person; (l) not permit, cause or suffer any extraordinary losses not covered by insurance; (m) not remove any director or auditor or terminate any officer or have any of the foregoing resign; (n) not purchase or otherwise acquire any shares or other equity interest, as the case may be, in any person. The Corporation further represents that (o) it is not currently facing any action or suit, proceeding, inquiry, or any threat thereof, against or affecting the Corporation at law or in equity or before or by any foreign, federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality which may in any way materially and adversely affect the Corporation; (p) except as described in its SEC filings, and/or the Corporation's interim financial statements, there have not been any transactions, agreements, arrangements or payments (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs salaries, bonuses, royalties or fees) relating to or affecting the Corporation or its business: (i) involving any related entity of inventory the Corporation, (ii) involving any current or write-offs former director, officer, shareholder of accounts receivable the Corporation, or (iii) involving any member of the immediate family of any individual described in clause (ii) above, (iv) involving any other than in person not acting at arm's length with the ordinary course of business consistent with past practice Corporation or as required by GAAP, SEC rule or policy or applicable Law(v) not otherwise at arm's length.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30Except as set forth in Schedule 3.9 hereto, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since March 31, 2006, there has not been: (i) any Material Adverse Effect on Parent, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with cash, stock or property) in respect of, any of Parent's capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent's capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) except for the Merger and Reverse Split contemplated following the transactions contemplated thereby. From June 30Closing, 2007any split, through the date hereofcombination or reclassification of any of Parent's capital stock, (iv) any granting by Parent of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Parent of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent of any increase in severance or termination pay or any entry by Parent into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (dv) entry by Parent into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with respect to any Governmental Entity, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of Parent, (vii) any issuance of, or policy agreement to issue, capital stock of Parent or applicable Lawany other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities, or (viii) any revaluation by Parent of any of their respective assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of Parent other than in the ordinary course of business.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Multi Link Telecommunications Inc)
Absence of Certain Changes or Events. From June 30Except as set forth in Schedule 8.12and Section 7.3, 2007, through since the date hereofof the Reference Statement of Net Assets, the Company and each of its Subsidiaries have Business has been conducted their business only in the ordinary course of such business and consistent with past practice, except as contemplated and since such date neither Seller, with respect to the Business, nor any Purchased Subsidiary has suffered any Material Adverse Effect on the Business; suffered any material damage, destruction or casualty loss (whether or not covered by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed insurance); granted any increase in the Company SEC Documents, neither the Company nor rate or terms of compensation payable or to become payable to any of its Subsidiaries has engaged in any transaction directors, officers or series of transactions material to the Company and its Subsidiaries in the aggregatekey employees, other than except increases occurring in the ordinary course of business consistent in accordance with past practice, and there have not been (a) its customary practices; amended or granted any Effects on increase in the rate or with respect to terms of any employee benefit plan payment or arrangement; entered into any material agreement except agreements in the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companyordinary course of business, or agreement any employment or commitment severance agreement; made any change in its accounting methods, principles or practices; borrowed or agreed to borrow any funds for which Purchaser or a Purchased Subsidiary would be liable after the Closing; paid, discharged or satisfied any claim, liability or obligation in excess of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock$250,000, other than (i) grants the payment, discharge or satisfaction of Company Stock Options, Restricted Stock (liabilities and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than obligations incurred in the ordinary course of business and consistent with past practice practice; prepaid any obligation having a fixed maturity of more than 90 days form the date such obligation was issued or incurred; not paid, within a reasonable date of when due, consistent with past practice, any accounts payable in excess of $250,000 in the aggregate, or sought the extension of the payment date of any accounts payable in excess of $250,000 in the aggregate; written down the value of any inventory; permitted or allowed any of its Property or assets to be subjected to any Encumbrance, except for liens for Permitted Encumbrances and Encumbrances specifically set forth in the schedules hereto; written off as required by GAAPuncollectible any notes or accounts receivable in excess of $250,000; agreed to guaranty the obligations of any other person or entity; granted any person or entity any power of attorney; canceled any debts or waived any claims or rights in excess of $100,000; sold, SEC rule transferred or policy otherwise disposed of any of its properties or applicable Lawassets in excess of $100,000 in the aggregate, except for the sale of inventory in the ordinary course of business and consistent with past practice; disposed of, abandoned or permitted to lapse any rights to the use of any Purchased Rights or disposed of or disclosed, or permitted to be disclosed (except as necessary in the conduct of its business), to any person other than representatives of Purchaser, any trade secret, formula, process, know-how or similar information not theretofore a matter of public knowledge; made any capital expenditures or commitments in excess of $250,000 in the aggregate for repairs or additions to property, plant, equipment or tangible capital assets; amended or taken steps to amend the organizational documents of any Purchased Subsidiary; suffered any loss or become aware of any prospective loss of any customers, suppliers, distributors, accounts, product line or sales or management personnel; or agreed, whether in writing or otherwise, to take any action described in this Section 8.12.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30Since the Balance Sheet Date there have not been any events, 2007changes, through occurrences or state of facts that, individually or in the date hereofaggregate, have had or are reasonably likely to have a Company Material Adverse Effect. Except as disclosed in the Filed Company SEC Documents, since the Balance Sheet Date (a) the Company and each of its Subsidiaries have conducted carried on and operated their business respective businesses in all material respects in the ordinary course of such business consistent with past practice, practice through and including the date of this Agreement and (b) except as contemplated by this Agreement set forth in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in Section 3.6 of the Company SEC DocumentsDisclosure Schedules, neither the Company nor any of its Subsidiaries has engaged taken any action described in any transaction or series of transactions material Section 5.2(a) hereof that, if taken after the date hereof and prior to the Company and its Subsidiaries Reverse Merger Effective Time without the prior written consent of Parent, would violate such provision. Without limiting the foregoing, except (i) as disclosed in the aggregateFiled Company SEC Documents and (ii) with respect to matters subsequent to the date of this Agreement, to the extent expressly permitted by Section 5.2(a), since the Balance Sheet Date there has not occurred any: (A) sale or other than disposition of or pledge or other encumbrance upon a material amount of property or other assets of the Company or any of its Subsidiaries, except sales of Vessels used in the Company’s offshore supply vessel business or other properties in the ordinary course of business consistent with past practice, and there have not been (aB) declaration, setting aside or payment of any Effects on dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company that constitute or any of its Subsidiaries (other than dividends by a Material Adverse Effect on the Company; (b) any issuance by the Company, direct or agreement or commitment indirect wholly owned Subsidiary of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stockits parent), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any capital stock of the Company, (C) split, combination or reclassification of any capital stock of the Company, (D) change in financial or tax accounting methods, principles or practices by the Company or its Subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (E) material amount Tax election inconsistent with past practices or the settlement or compromise of their assetsany material Tax liability, taken (F) damage, destruction or loss (whether or not covered by insurance) of any material asset of the Company or any of its Subsidiaries which materially affects the use thereof, (G) granting by the Company or any of its Subsidiaries to any officer of any increase in compensation, except as a wholewas required under any employment agreements in effect as of the Balance Sheet Date, includingcomplete and correct copies of which have been made available to Parent, without limitation, write-downs or any granting by the Company or any of inventory or write-offs of accounts receivable its Subsidiaries to any employee other than an officer of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice practice, (H) granting by the Company or any of its Subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the Balance Sheet Date, complete and correct copies of which have been made available to Parent, or any granting by GAAPthe Company or any of its Subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, SEC rule except in the ordinary course of business consistent with past practice, (I) entry by the Company or policy any of its Subsidiaries into any (or applicable Lawamendment of any existing) employment, severance or termination agreement with any officer, (J) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (other than a Multiemployer Plan) or (K) acceleration of vesting of any option to acquire capital stock of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seabulk International Inc)
Absence of Certain Changes or Events. From June 30Since March 31, 20072010, through the date hereofthere has not been: (i) any Material Adverse Effect on Grass Roots; (ii) any declaration, the Company and each setting aside or payment of its Subsidiaries have conducted their business any dividend on, or other distribution (whether in the ordinary course cash, stock or property) in respect of, any of Grass Roots' capital stock, or any purchase, redemption or other acquisition of any of Grass Roots' capital stock or any other securities of Grass Roots or any options, warrants, calls or rights to acquire any such business consistent with past practiceshares or other securities; (iii) any split, combination or reclassification of any of Grass Roots' capital stock; (iv) any granting by Grass Roots of any increase in compensation or fringe benefits, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by Grass Roots of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Grass Roots of any increase in severance or termination pay or any entry by Grass Roots into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such planwhich are materially altered upon the occurrence of a transaction involving Grass Roots of the nature contemplated hereby; (dv) entry by Grass Roots into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken Intellectual Property (as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable defined herein) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Grass Roots with respect to any Governmental Entity; (vi) any material change by Grass Roots in its accounting methods, principles or practices, except as required by concurrent changes in GAAP; (vii) any change in the auditors of Grass Roots; (viii) any issuance of capital stock of Grass Roots; or (ix) any revaluation by Grass Roots of any of its assets, SEC rule including, without limitation, writing down the value of capitalized inventory or policy writing off notes or applicable Lawaccounts receivable or any sale of assets of Grass Roots other than in the ordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. From Except as set forth in Section 3.9 of the Parent Schedules since June 30, 20071999, through the date hereofthere has not been: (i) any Material Adverse Effect on Parent, the Company and each (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of Parent's or any of its Subsidiaries' capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent's capital stock or any other securities of Parent or its Subsidiaries have conducted or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their business in termination pursuant to the ordinary course terms of such business consistent with past practicetheir pre-existing stock option or purchase agreements, except as contemplated (iii) any split, combination or reclassification of any of Parent's or any of its Subsidiaries' capital stock, (iv) any granting by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor Parent or any of its Subsidiaries has engaged of any increase in any transaction compensation or series fringe benefits, except for normal increases of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition payment by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Parent or any of its Subsidiaries of any material amount bonus, except for bonuses made in the ordinary course of their assetsbusiness consistent with past practice, taken or any granting by Parent or any of its Subsidiaries of any increase in severance or termination pay or any entry by Parent or any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Parent of the nature contemplated hereby, (v) entry by Parent or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable defined in Section 2.19) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent with the SEC, (vi) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, SEC rule or policy (vii) any revaluation by Parent of any of its assets, including, without limitation, writing down the value of capitalized inventory or applicable Lawwriting off notes or accounts receivable or any sale of assets of the Parent other than in the ordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through Since the date hereofof the Seller Balance Sheet there has not been: (i) any Material Adverse Effect on any of the Subsidiaries, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company and each Subsidiaries’ capital stock, or any repurchase for value or redemption by the Seller or any of its Subsidiaries have conducted their business of any of the capital stock or any other securities of the Subsidiaries, (iii) any split, combination or reclassification of any of the Subsidiaries’ capital stock, (iv) any granting by any of its Subsidiaries of any material (whether individually or in the aggregate) increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of such business consistent with past practice, except as contemplated practice or any payment by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its the Subsidiaries has engaged in of any transaction material (whether individually or series of transactions material to the Company and its Subsidiaries in the aggregate) bonus, except for bonuses made in the ordinary course of business consistent with past practice or any granting by any of the Subsidiaries of any material (whether individually or in the aggregate) increase in severance or termination pay or any entry by any of the Subsidiaries into any material (whether individually or in the aggregate) employment, severance, termination or indemnification agreement, (v) entry by any of the Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property (as defined in Section 2.9(a)(i)), other than non-exclusive license, supply and distribution agreements entered into in the ordinary course of business consistent with past practice, and there have not been (avi) any Effects on material (whether individually or in the aggregate) amendment or consent with respect to any Material Contract (as defined in Section 2.15) in effect since the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment date of the Company to issueSeller Balance Sheet, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (dvii) any material change by the Seller in its accounting principlesmethods, practices principles or methodspractices, except as required by concurrent changes in GAAP, SEC rule or policy or applicable Law; and (eviii) any material revaluation by the Company or of any of its Subsidiaries of any material amount of their the Subsidiaries’ assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable Law.
Appears in 1 contract
Samples: Stock Purchase and Option Agreement (Transax International LTD)
Absence of Certain Changes or Events. From June 30Since the Balance Sheet Date there have not been any events, 2007changes, through occurrences or state of facts that, individually or in the date hereofaggregate, have had or are reasonably likely to have a Company Material Adverse Effect. Except as disclosed in the Filed Company SEC Documents, since the Balance Sheet Date (a) the Company and each of its Subsidiaries have conducted carried on and operated their business respective businesses in all material respects in the ordinary course of such business consistent with past practice, practice through and including the date of this Agreement and (b) except as contemplated by this Agreement set forth in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in Section 3.6 of the Company SEC DocumentsDisclosure Schedules, neither the Company nor any of its Subsidiaries has engaged taken any action described in any transaction or series of transactions material Section 5.2(a) hereof that, if taken after the date hereof and prior to the Company and its Subsidiaries Reverse Merger Effective Time without the prior written consent of Parent, would violate such provision. Without limiting the foregoing, except (i) as disclosed in the aggregateFiled Company SEC Documents and (ii) with respect to matters subsequent to the date of this Agreement, to the extent expressly permitted by Section 5.2(a), since the Balance Sheet Date there has not occurred any: (A) sale or other than disposition of or pledge or other encumbrance upon a material amount of property or other assets of the Company or any of its Subsidiaries, except sales of Vessels used in the Company's offshore supply vessel business or other properties in the ordinary course of business consistent with past practice, and there have not been (aB) declaration, setting aside or payment of any Effects on dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock of the Company that constitute or any of its Subsidiaries (other than dividends by a Material Adverse Effect on the Company; (b) any issuance by the Company, direct or agreement or commitment indirect wholly owned Subsidiary of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stockits parent), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any capital stock of the Company, (C) split, combination or reclassification of any capital stock of the Company, (D) change in financial or tax accounting methods, principles or practices by the Company or its Subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (E) material amount Tax election inconsistent with past practices or the settlement or compromise of their assetsany material Tax liability, taken (F) damage, destruction or loss (whether or not covered by insurance) of any material asset of the Company or any of its Subsidiaries which materially affects the use thereof, (G) granting by the Company or any of its Subsidiaries to any officer of any increase in compensation, except as a wholewas required under any employment agreements in effect as of the Balance Sheet Date, includingcomplete and correct copies of which have been made available to Parent, without limitation, write-downs or any granting by the Company or any of inventory or write-offs of accounts receivable its Subsidiaries to any employee other than an officer of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice practice, (H) granting by the Company or any of its Subsidiaries to any officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the Balance Sheet Date, complete and correct copies of which have been made available to Parent, or any granting by GAAPthe Company or any of its Subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, SEC rule except in the ordinary course of business consistent with past practice, (I) entry by the Company or policy any of its Subsidiaries into any (or applicable Lawamendment of any existing) employment, severance or termination agreement with any officer, (J) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (other than a Multiemployer Plan) or (K) acceleration of vesting of any option to acquire capital stock of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seacor Holdings Inc /New/)
Absence of Certain Changes or Events. From June 30Except as disclosed in the Chancellor SEC Documents or except as disclosed in the Chancellor Disclosure Letter, 2007, through or as otherwise agreed to in writing after the date hereofhereof by Capstar, or as expressly permitted by this Agreement, since the Company date of the most recent audited financial statements included in the Chancellor SEC Documents, Chancellor and each of its Subsidiaries subsidiaries have conducted their business only in the ordinary course, and there has not been (i) any change which could reasonably be expected to have a Chancellor Material Adverse Effect (including as a result of the consummation of the transactions contemplated by this Agreement), (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of Chancellor's currently outstanding capital stock (other than the payment of regular cash dividends on the Chancellor 7% Convertible Preferred Stock and Chancellor $3.00 Convertible Preferred Stock, in each case in accordance with usual record and payment dates), (iii) any split, combination or reclassification of any of its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, (iv) (x) any granting by Chancellor or any of its subsidiaries to any director, officer or other employee or independent contractor of Chancellor or any of its subsidiaries of any increase in compensation or acceleration of benefits, except in the ordinary course of such business consistent with past practiceprior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Chancellor SEC Documents, except as contemplated (y) any granting by this Agreement Chancellor or any of its subsidiaries to any director, officer or other employee or independent contractor of any increase in, or acceleration of benefits in respect of, severance or termination pay, or pay in connection with any change of control of Chancellor, except in the Merger and the transactions contemplated thereby. From June 30ordinary course of business consistent with prior practice or as was required under any employment, 2007, through severance or termination agreements in effect as of the date hereof, except as disclosed of the most recent audited financial statements included in the Company Chancellor SEC Documents, neither the Company nor Documents or (z) any entry by Chancellor or any of its Subsidiaries has engaged in subsidiaries into any transaction employment, severance, change of control, or series of transactions material to the Company and its Subsidiaries in the aggregatetermination or similar agreement with any director, executive officer or other employee or independent contractor other than in the ordinary course of business consistent with past practicepractices, and there have not been or (av) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required principles or practices by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Chancellor or any of its Subsidiaries of any material amount of their subsidiaries materially affecting its assets, taken liability or business, except insofar as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as may have been required by GAAP, SEC rule or policy or applicable Lawa change in generally accepted accounting principles.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chancellor Media Corp of Los Angeles)
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in KBL SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June Agreement, since September 30, 20072008, through the date hereofthere has not been: (i) any Material Adverse Effect on KBL, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of KBL’s capital stock, or any purchase, redemption or other acquisition by KBL of any of KBL’s capital stock or any other securities of KBL or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of KBL’s capital stock, (iv) any granting by KBL of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on or payment by KBL of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by KBL of any increase in severance or termination pay or any entry by KBL into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; which are materially altered upon the occurrence of a transaction involving KBL of the nature contemplated hereby, (dv) entry by KBL into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by KBL with respect to any Governmental Entity, (vi) any material change by KBL in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, SEC rule (vii) any change in the auditors of KBL, (viii) any issuance of capital stock of KBL, (ix) any revaluation by KBL of any of its assets, including, without limitation, writing down the value of capitalized inventory or policy writing off notes or applicable Law.accounts receivable or any sale of assets of KBL other than in the ordinary course of business or (x) any agreement, whether written or oral, to do any of the foregoing
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (KBL Healthcare Acquisition Corp III)
Absence of Certain Changes or Events. From June Since September 30, 2007, through the date hereof, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof1998, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material Holopak Financial Statements delivered prior to the Company date of this Agreement and its Subsidiaries as disclosed in Section 6.7 of the Holopak Disclosure Memorandum, and from the date hereof until the Effective Time, for those actions permitted pursuant to Section 7.2 hereof with respect to Holopak, (i) there have been no events, changes or occurrences which have had, or are reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on Holopak, and (ii) there has not been: (A) any damage, destruction or loss (whether or not covered by insurance) with respect to any Assets of any Holopak Company that has resulted or is reasonably likely to result in a Material Adverse Effect on Holopak, (B) any material change by any Holopak Company in its accounting methods, principles or practices; (C) any increase in the benefits under, or the establishment or amendment of, any material bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other than employee benefit plan, or any material increase in the compensation payable or to become payable to directors, officers or employees of any Holopak Company, except for increases in salaries or wages payable or to become payable in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice and the granting of stock options as reflected in Section 6.3 hereof or (D) take any other actions inconsistent with the actions described in Section 7.2 hereof. Since the date of Holopak's Annual Report on Form 10-K for the fiscal year ended March 31, 1998 as required by GAAPfiled with the SEC, SEC rule there has not been any declaration, setting aside or policy payment of any dividends or applicable Law.distributions in respect of shares of Holopak Common Stock or the shares of stock of any Holopak Subsidiary or any redemption, repurchase or other reacquisition of any of Holopak's equity securities or any of the equity securities of any Holopak Subsidiary. 6.8
Appears in 1 contract
Absence of Certain Changes or Events. From June 30Since December 31, 20072000, through the date hereofthere has not been (i) any Material Adverse Effect on Seller, the Company and each of its Subsidiaries have conducted their business (ii) Seller has been operating in the ordinary course of such business consistent with past practice in all material respects with commercially reasonable efforts to preserve the business of Seller intact, to keep available the services of the employees and to preserve (in the good faith judgment of Seller within the context of the Chapter 11 Cases) the goodwill of Seller's suppliers, customers and others having business relations with Seller, (iii) any granting by Seller or any of its subsidiaries of any increase in compensation or fringe benefits, except for increases of cash compensation in the ordinary course of business and consistent with past practice, except as contemplated or any payment by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor Seller or any of its Subsidiaries has engaged in subsidiaries of any transaction or series of transactions material to the Company and its Subsidiaries in the aggregatebonus, other than except for bonuses made in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition granting by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company Seller or any of its Subsidiaries subsidiaries of any material amount increase in severance or termination pay or any entry by Seller or any of their assetsits subsidiaries into any currently effective employment, taken severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving Seller of the nature contemplated hereby, (iv) entry by Seller or any of its subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable defined in Section 2.16 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Seller with the SEC, (v) any material change by Seller in its accounting methods, principles or practices, except as required by changes in GAAP, SEC rule (vi) any revaluation by Seller of any of its assets, including, without limitation, writing down the value of capitalized inventory or policy writing off notes or applicable Lawaccounts receivable, or (vii) any sale of assets of Seller other than in the ordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. From June 30, 2007, through Except as set forth in Parent SEC Reports filed prior to the date hereofof this Agreement, the Company and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement Agreement, since January 1, 2006, there has not been: (i) any Material Adverse Effect on Parent or Merger Sub; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in connection with the cash, stock or property) in respect of, any of Parent’s or Merger and the transactions contemplated thereby. From June 30Sub’s capital stock, 2007or any purchase, through the date hereofredemption or other acquisition by Parent or Merger Sub of any of Parent’s or Merger Sub’s capital stock or any other securities of Parent or Merger Sub or any options, warrants, calls or rights to acquire any such shares or other securities; (iii) any split, combination or reclassification of any of Parent’s or Merger Sub’s capital stock; (iv) any granting by Parent or Merger Sub of any increase in compensation or fringe benefits, except as disclosed in the Company SEC Documents, neither the Company nor any for normal increases of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than cash compensation in the ordinary course of business consistent with past practice, and there have not been (a) or any Effects on payment by Parent or Merger Sub of any bonus, except for bonuses made in the ordinary course of business consistent with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Companypast practice, or any granting by Parent or Merger Sub of any increase in severance or termination pay or any entry by Parent or Merger Sub into any currently effective employment, severance, termination or indemnification agreement or commitment any agreement the benefits of the Company to issue, any shares of capital stock which are contingent or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such planwhich are materially altered upon the occurrence of a transaction involving Parent or Merger Sub of the nature contemplated hereby; (dv) entry by Parent or Merger Sub into any material change in accounting principles, practices licensing or methods, except as required by GAAP, SEC rule other agreement with regard to the acquisition or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries disposition of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Parent or Merger Sub with respect to any Governmental Entity; (vi) any material change by Parent or Merger Sub in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP; (vii) any change in the auditors of Parent or Merger Sub; (viii) any issuance of capital stock of Parent or Merger Sub; (ix) any revaluation by Parent or Merger Sub of any of its assets or any sale of assets of Parent or Merger Sub other than in the ordinary course of business; (x) any material claims, SEC rule suits, actions or policy proceedings commenced or applicable Lawsettled by Parent; or (xi) any material transaction or any other material action taken by Parent outside the ordinary course of business or inconsistent with past practices; or (xii) any agreement to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Echo Healthcare Acquisition Corp.)
Absence of Certain Changes or Events. From June 30, 2007, through Except as disclosed in the NU SEC Documents filed pursuant to the Securities Act or the Exchange Act and publicly available prior to the date hereofof this Agreement (the "Previously Filed NU SEC Documents"), since December 31, 1998, to the Company date of this Agreement, (i) NU and each of its the NU Subsidiaries have conducted their business in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in accounting principles, practices or methods, except as required by GAAP, SEC rule or policy or applicable Law; and (e) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than respective businesses only in the ordinary course of business consistent with past practice and (ii) there has not been, and no fact or condition exists which, individually or in the aggregate, would have a Material Adverse Effect on NU. Except as disclosed in the Previously Filed NU SEC Documents, from December 31, 1998 through the date of this Agreement, there has not been (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any equity interest of NU, (ii) any split, combination or reclassification of any equity interest of NU or any issuance or the authorization of any issuance of any equity interest of NU or NU Voting Debt or any other securities in respect of, in lieu of or in substitution for any equity interest of NU, except for issuances of NU Common Shares under the NU Stock Plans in accordance with their present terms or upon exercise of outstanding NU Stock Options, or (iii) except as may have been required by a change in GAAP, SEC rule any change in accounting methods, principles or policy practices by NU or applicable Lawany NU Subsidiary materially affecting their respective assets, liabilities or business. As of the date of this Agreement, none of (i) the Agreement and Plan of Merger (the "Yankee Merger Agreement") dated as of June 14, 1999 among Yankee Energy System, Inc. ("Yankee") and NU, (ii) the Purchase and Sale Agreement (the "CL&P/NGC Sale Agreement") dated July 2, 1999 between The Connecticut Light and Power Company ("CL&P") and Northeast Generation Company ("NGC"), (iii) the Purchase and Sale Agreement (the "NRG Sale Agreement") dated July 1, 1999, between CL&P and NRG, Inc. (the "NRG Sale Agreement") or (iv) the Purchase and Sale Agreement (the "WMECO/NGC Sale Agreement") dated July 2, 1999, between Western Massachusetts Electric Company ("WMECO") and NGC has been amended, modified or supplemented.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Consolidated Edison Inc)
Absence of Certain Changes or Events. From June 30Except as set forth in Section 2.7 of the Parent Disclosure Schedule from August 31, 2007, through 2003 (the "Parent Balance Sheet Date") until the date hereof, the Company (i) Parent and each of its Subsidiaries have conducted their business in the ordinary course of such business consistent with past practicenot incurred any material liability or obligation (indirect, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30direct or contingent), 2007or entered into any material oral or written agreement or other transaction, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than that is not in the ordinary course of business consistent with past practicepractices, and there have not been (a) any Effects on or with respect to the Company that constitute a Material Adverse Effect on the Company; (b) any issuance by the Company, or agreement or commitment of the Company to issue, any shares of capital stock or securities convertible into or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares of capital stock, other than (i) grants of Company Stock Options, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and (ii) issuances Parent and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance), (iii) there has been no dividend or distribution of Shares upon exerciseany kind declared, vesting, paid or payout, as applicable, made in respect of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any class of stock of Parent or any of its Subsidiaries or any repurchase, redemption or any other acquisition by the Company Parent or any of its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company Parent or any of its Subsidiaries, (iv) there has been no creation or assumption by Parent or any of its Subsidiaries of any Lien (as hereinafter defined), except Permitted Liens, on any material asset, (v) there has been no transaction or commitment made, or any contract or agreement entered into, by Parent or any of its Subsidiaries outside of the ordinary course of business relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by Parent or any of its Subsidiaries of any contract, agreement or other than pursuant right, in either case, material to publicly disclosed stock repurchase programs Parent and any of its Subsidiaries outside of the ordinary course of business, taken as a whole, (vi) there has been no change by Parent or as directed by a participant any of its Subsidiaries in any Company Equity Plan, as permitted by the terms of such plan; (d) any material change in its accounting principles, practices or methods, except as required by GAAP, SEC rule (vii) there has not been any material change in the amount or policy or applicable Law; and (e) any revaluation by terms of the Company indebtedness of Parent or any of its Subsidiaries from Parent Balance Sheet Date, (viii) there has been no event causing a Material Adverse Effect on Parent, and (ix) there has been no amendment to the Certificate of any material amount Incorporation or Bylaws of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP, SEC rule or policy or applicable LawParent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (California Amplifier Inc)
Absence of Certain Changes or Events. From June 30Except as disclosed in the Parent SEC Documents or as set forth in Section 4.07 of the Disclosure Schedule, 2007, through since the date hereofBalance Sheet Date, the Company Parent, the Acquisition Sub and each of its the Parent Subsidiaries have conducted their business respective businesses only in the ordinary course of such business consistent with past practice, except as contemplated by this Agreement in connection with the Merger and the transactions contemplated thereby. From June 30, 2007, through the date hereof, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has engaged in any transaction or series of transactions material to the Company and its Subsidiaries in the aggregate, other than in the ordinary course of business consistent with past practice, and there have has not been any material adverse change (aas defined in Section 9.03) any Effects on or with respect to the Company that constitute a Material Adverse Effect on Parent, the Company; Acquisition Sub or the Parent Subsidiaries. Except as disclosed in the Parent SEC Documents or as set forth in Section 4.07 of the Disclosure Schedule, since the Balance Sheet Date, there has not been (bi) any issuance by declaration, setting aside or payment of any dividend or other distribution with respect to the Company, or agreement or commitment of the Company to issue, any shares of Parent's capital stock or securities convertible into any redemption, purchase or exercisable or exchangeable for, or that evidence the right to subscribe for or acquire, shares other acquisition of any of its capital stock, (ii) any split, combination or reclassification of any of the Parent's capital stock or any issuance or the authorization of any issuance of any other than (i) grants of Company Stock Optionssecurities in respect of, Restricted Stock (and Stock Unit Awards issued in lieu of Restricted Stock issued to directors who elect to defer stock awards), Restricted Stock Unit Awards, Company Common Stock issued to any director who elects to receive compensation or in the form of stock rather than cash (and Stock Unit Awards issued in lieu of such Company Common Stock to any director who elects to defer receipt of such Company Common Stock), or other equity grants substitution for compensatory purposes, and the grants of rights to acquire stock under the ESPPs (including issuances of shares of Company Common Stock pursuant to the ESPPs upon conversion of rights to purchase Celera Group Common Stock into rights to purchase Company Common Stock in connection with the Celera Separation) and its capital stock, (ii) issuances of Shares upon exercise, vesting, or payout, as applicable, of outstanding Stock Options, Restricted Stock Unit Awards, Stock Unit Awards, and rights under the ESPPs; (c) any repurchase, redemption or any other acquisition by the Company or its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or its Subsidiaries, other than pursuant to publicly disclosed stock repurchase programs or as directed by a participant in any Company Equity Plan, as permitted by the terms of such plan; (diii) any material change in accounting principlesmethods, principles or practices by the Parent (except insofar as may be required by a change in GAAP), (iv) (w) any granting by the Parent, the Acquisition Sub or methodsany of the Parent Subsidiaries to any executive officer of the Parent, the Acquisition Sub or any of the Parent Subsidiaries of any increase in compensation, except in the ordinary course of business (including in connection with promotions) consistent with past practice or as was required under employment agreements in effect as of the Balance Sheet Date, (x) any granting by the Parent, the Acquisition Sub or any of the Parent Subsidiaries to any such officer of any increase in severance or termination pay, except as part of a standard employment package to any person promoted or hired, or as was required by GAAPunder employment, SEC rule severance or policy or applicable Law; and termination agreements in effect as of the Balance Sheet Date, (ey) any revaluation by the Company or any of its Subsidiaries of any material amount of their assets, taken as a whole, including, without limitation, write-downs of inventory or write-offs of accounts receivable other than except employment arrangements in the ordinary course of business consistent with past practice with employees other than any executive officer of the Parent, the Acquisition Sub or any of the Parent Subsidiaries, as applicable, any entry by the Parent, the Acquisition Sub or any of the Parent Subsidiaries, as applicable, into any employment, severance or termination agreement with any such employee or executive officer, or (z) any increase in or establishment of any bonus, insurance, deferred compensation, pension, retirement, profit-sharing, stock option (including the granting of stock options, stock appreciation rights, performance awards or restricted stock awards or the amendment of any existing stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan or agreement or arrangement, (v) any damage, destruction or loss, whether or not covered by insurance, that has or reasonably could be expected to have a material adverse effect on the Parent, (vi) any amendments or changes in the certificate or articles of incorporation or bylaws of the Parent, or Acquisition Sub or the Parent Subsidiaries (vii) any material revaluation by the Parent of any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business, or (viii) any other action or event that would have required by GAAP, SEC rule the consent of the Company pursuant to Section 5.01 had such action or policy or applicable Lawevent occurred after the date of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cell Power Technologies Inc)
