Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve: (a) any Material Adverse Effect on VGX on any of its Subsidiaries; (b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director; (c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries; (d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries; (e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding; (f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses); (g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC"); (h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate; (i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP; (j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business; (k) any establishment, termination or amendment of any VGX Employee Plan; (l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX; (m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries; (n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements; (o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2; (p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries; (q) any amendment of the Certificate of Incorporation or By-Laws of VGX; (r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate; (s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business; (t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business; (u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries; (v) any acquisition or disposition of any equity interest in any other Person; or (w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Inovio Biomedical Corp), Agreement and Plan of Merger (Inovio Biomedical Corp)
Absence of Certain Changes or Events. Since the date of VGX Latest Balance SheetSheet Date, VGX and each of its Subsidiaries the Surviving Company has conducted its business only in the ordinary course and in a manner consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
been: (a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any material assets of the Surviving Company; (b) any change by the Surviving Company in its accounting methods, principles or practices; (c) any declaration, setting aside or payment of any dividends or distributions in respect of shares of the capital stock of the Surviving Company or any redemption, purchase or other acquisition by the Surviving Company of any of its securities; (d) any increase in the material assetsbenefits under, or the establishment or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing or other employee benefit plan, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable or to become payable to directors, officers or employees of the Surviving Company, except for annual bonuses or merit increases in salaries or wages in the ordinary course of business and consistent with past practice; (e) any officer payment or director other transfer of VGX (assets by the Surviving Company, other than increases compensation payments in each case in connection the ordinary course of business and consistent with general performance reviews and annual salary increases in each case past practice; (f) any revaluation by the Surviving Company of any of its assets, including the writing down or off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
; (g) any entry by the Surviving Company into any commitment or transaction of material to the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (Surviving Company including, without limitation, Intellectual Property), incurring or agreeing to incur capital expenditures in excess of $10,000; (h) any encumbrance (excluding Permitted Liens) incurrence of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), indebtedness for borrowed money other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than trade payables incurred in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than ; (i) the issuance, delivery and/or sale termination of shares employment (whether voluntary or involuntary) of VGX Common Stock pursuant to any officer or key employee of the exercise of VGX Options, Surviving Company; or (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(pj) any splitchange, combination occurrence or reclassification of any of VGX Capital Stock circumstance having or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect ofreasonably likely to have, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX , a material adverse effect on the business, operations, assets, financial condition, results of operations or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any prospects of the foregoingSurviving Company.
Appears in 2 contracts
Samples: Merger Agreement (Advanced 3-D Ultrasound Services Inc), Merger Agreement (World Energy Solutions, Inc.)
Absence of Certain Changes or Events. Since the Balance Sheet Date to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvethis Agreement:
(a) there has not been any Company Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation or termination by VGX or neither the Company nor any of its Subsidiaries of any executive officer has amended or directorotherwise modified its Charter Documents;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or neither the Company nor any of its SubsidiariesSubsidiaries has declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of its securities;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of neither the material assets, or any material portion of the assets, of VGX or Company nor any of its Subsidiaries or materially and adversely affecting the business has altered any term of VGX or any of its Subsidiariestheir respective outstanding securities;
(e) neither the Company nor any commencement of Legal Proceedings against VGX its Subsidiaries has sold, leased, transferred or assigned any property or assets of the Company or any of its Subsidiaries, except for the sale of inventory and no Person has notified VGX or any the grant of its Subsidiaries in writing that itOut-Bound Licenses on a non-exclusive basis, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)practice;
(gf) any transaction of neither the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of Company nor any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case has incurred, assumed or $1,000,000 in the aggregate;
(i) any guaranteed Indebtedness for a material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend onamount, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to materially modified the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any material Indebtedness outstanding as of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or Balance Sheet Date in each case other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock then in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice ;
(pg) any split, combination or reclassification of any of VGX Capital Stock or neither the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or Company nor any of its Subsidiaries of has incurred any indebtedness material Liability or waiver of created or assumed any rights material to VGXLien on any asset, except for Permitted Liens, Liens arising under lease financing arrangements existing as of the Balance Sheet Date and Liens for taxes not yet due and payable with respect to which the Company maintains adequate reserves;
(h) neither the Company nor any of its Subsidiaries has made any loan, advance or capital contribution to, or investment in, a material amount in any Person other than travel loans or advances in the ordinary course of businessbusiness consistent with past practice;
(ti) there has not been any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000labor dispute, other than individual grievances, or any loans made activity or agreed proceeding by a labor union or representative thereof to be made by VGX or organize any employees of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX Company or any of its Subsidiaries;
(vj) there has not been any acquisition material damage, destruction or disposition loss with respect to material property and assets of the Company or any equity interest of its Subsidiaries, whether or not covered by insurance;
(k) neither the Company nor any of its Subsidiaries has made any material change in accounting practices;
(l) neither the Company nor any other Personof its Subsidiaries has made any Tax election, changed its method of Tax accounting or settled any claim for Taxes; or
(wm) any agreement by VGX or neither the Company nor any of its Subsidiaries has agreed, whether in writing or otherwise, to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Valeant Pharmaceuticals International), Merger Agreement (Valeant Pharmaceuticals International)
Absence of Certain Changes or Events. Since the Balance Sheet Date to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, this Agreement (i) with respect to VGX the representation and its Subsidiaries other than VGXI there has not been or warranty made as of the date of this Agreement) and to the Closing Date (ii) with respect to VGXI only, to the Knowledge representation and warranty made as of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:the Closing Date):
(a) no change in the condition (financial or otherwise), operations, prospects or results of operations of the Business or Seller or any Seller Subsidiary has caused a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) neither Seller nor any resignation Seller Subsidiary has declared, set aside or termination by VGX paid any dividend or other distribution in stock or property (other than Excluded Assets) with respect to any of its Subsidiaries of Equity Security or Debt Security, except for cash dividends or other cash distributions or to repay any executive officer or directorintercompany debt;
(c) neither Seller nor any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person Seller Subsidiary has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change increased or modified the compensation or benefits payable or to become payable by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay such entity to any employee current or former directors, employees, consultants or contractors of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX OptionsBusiness, (ii) increased or modified or terminated any Benefit Plan made to, for or with any current or former directors, employees, consultants or contractors of the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option PlanBusiness, and or (iii) issuances upon exercise of VGX Warrants entered into any employment, severance or other rights disclosed pursuant termination agreement Related to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXBusiness, except in the ordinary course of business;
(td) neither Seller nor any indebtedness incurred Seller Subsidiary has sold, leased, transferred or guaranteed by VGX assigned any property or any of its Subsidiaries for borrowed money or any commitment assets Related to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, the Business (other than reasonable travel Excluded Assets), except for (i) the sale of Inventory, (ii) the grant of non-exclusive Out-Bound Licenses, and entertainment expense advances and trade accounts receivable (iii) the sale of obsolete Equipment, in each case in the ordinary course of businessthe Business consistent with past practice;
(ue) neither Seller nor any commencement of Legal Proceedings by VGX Seller Subsidiary has incurred, assumed or guaranteed any of its SubsidiariesIndebtedness Related to the Business (other than Excluded Liabilities);
(vf) neither Seller nor any acquisition Seller Subsidiary has mortgaged, pledged or disposition subjected to Liens any assets, properties or rights Related to the Business (other than Excluded Assets), except for Liens arising under lease financing arrangements existing as of the Balance Sheet Date and Permitted Liens;
(g) neither Seller nor any equity interest Seller Subsidiary has entered into, amended, modified, canceled or waived any rights under, any Material Contract in any other Person; ormaterial respect, and no Material Contract has been terminated or cancelled;
(wh) neither Seller nor any agreement by VGX Seller Subsidiary has taken any action outside the ordinary course of the Business, in any material respect;
(i) there has not been any violation of, or conflict with, any material applicable Law or any Business Authorization;
(j) neither Seller nor any Seller Subsidiary has agreed, or entered into any arrangement, to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Article IV untrue or incorrect as of its Subsidiaries the date when made; and
(k) neither Seller nor any Seller Subsidiary has agreed, whether in writing or otherwise, to do any of the foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Composite Technology Corp), Asset Purchase Agreement (Composite Technology Corp)
Absence of Certain Changes or Events. Since the Interim Balance Sheet Date to the date of VGX Balance Sheet, VGX this Agreement and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveClosing Date:
(a) there has not been any Material Adverse Effect on VGX on any material adverse change in the condition (financial or otherwise), operations, prospects or results of its Subsidiariesoperations of the Business or Seller;
(b) any resignation Seller has not amended or termination changed, or proposed to amend or change, its Charter Documents in a manner that could be expected to delay the consummation of the transactions contemplated by VGX or any of its Subsidiaries of any executive officer or directorthis Agreement;
(c) Seller has not declared, set aside or paid any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee dividend or other third party having business relations distribution (whether in cash, stock or property) with VGX respect to any equity security or any of its Subsidiariesdebt security;
(d) Seller has not (i) increased or modified the compensation or benefits payable or to become payable by Seller to any damagecurrent or former directors, destruction employees, consultants or loss (whether or not covered by insurance) materially and adversely affecting any contractors of the material assetsBusiness, (ii) increased or modified any Benefit Plan made to, for or with any current or former directors, employees or contractors of the Business, or (iii) entered into any material portion of employment, severance or termination agreement Related to the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesBusiness;
(e) Seller has not sold, leased, transferred or assigned any commencement property or assets Related to the Business, except for (i) the sale of Legal Proceedings against VGX or any Inventory, (ii) the grant of its Subsidiariesnon-exclusive Out-Bound Licenses, and no Person has notified VGX or any (iii) the sale of its Subsidiaries in writing that itobsolete Equipment, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and the Business consistent with past practicespractice;
(f) Seller has not incurred, assumed or pursuant guaranteed any Indebtedness Related to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)Business;
(g) Seller has not mortgaged, pledged or subjected to Liens any transaction assets, properties or rights Related to the Business, except for Liens arising under lease financing arrangements existing as of the type described in Item 404(a) of Regulation S-K of the rules Balance Sheet Date and regulations of the Securities and Exchange Commission (the "SEC")Permitted Liens;
(h) Seller has not entered into, amended, modified, canceled or waived any salerights under, lease, license, assignment any Material Contract and no Material Contract has been terminated or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregatecancelled;
(i) Seller has not taken any material change by VGX or any action outside the ordinary course of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPthe Business;
(j) there has not been any material revaluation by VGX labor dispute, other than individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessBusiness;
(k) there has not been any establishmentviolation of, termination or amendment of conflict with, any VGX Employee Planapplicable Law or any Business Authorization;
(l) Seller has not agreed, or entered into any material increase arrangement, to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Article IV untrue or incorrect as of severance or termination pay to any employee of VGX or any Subsidiary of VGXthe date when made;
(m) there has not been any declarationmaterial damage, setting aside destruction or payment loss with respect to the assets, properties and rights of any dividend onthe Business, whether or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiariesnot covered by insurance;
(n) Seller has not made any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant change in the accounting practices Related to the terms of their pre-existing stock option or purchase agreementsBusiness;
(o) Seller has not made any issuance Tax election, changed its method of Tax accounting or reservation settled any claim for issuance by VGX or any of its Subsidiaries ofTaxes, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant in each case Related to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;Business; and
(p) any splitSeller has not agreed, combination whether in writing or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect ofotherwise, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Symmetry Medical Inc.), Asset Purchase Agreement (Symmetry Medical Inc.)
Absence of Certain Changes or Events. Since . Except as described in Schedule 4.6, since the date of VGX the Most Recent Balance Sheet, VGX and each of its Subsidiaries :
4.6.1 no material adverse change has conducted its business occurred in the ordinary course consistent with past practice andfinancial condition, since such dateresults of operations, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been assets, liabilities, income or (ii) with respect to VGXI only, to prospects of the Knowledge of VGX, there has not been nor has VGX been asked to act in any management Licensed Operations or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its SubsidiariesAcquired Assets;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any 4.6.2 no material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely has occurred affecting the business of VGX or any of its SubsidiariesAcquired Assets;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case 4.6.3 except in the ordinary course of business of Seller in accordance with existing Hospital personnel policies, Seller has not increased or agreed to increase the compensation payable to any of the employees, contractors or service providers of Seller or made or agreed to make any bonus or severance payment to any of the employees, contractors or service providers of Seller and consistent with past practicesSeller has not employed any additional management personnel in respect of the Licensed Operations;
4.6.4 no labor dispute or enactment of state or local Law, promulgation of state or local regulation, or pursuant to existing contractual commitments), including other event or condition has occurred materially adversely affecting the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)Licensed Operations or the Acquired Assets;
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale4.6.5 Seller has not sold, leaseassigned, licensetransferred, assignment distributed or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business otherwise disposed of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXAcquired Assets, except in the ordinary course of businessbusiness of Seller and under the operations of the Interim Management Services Agreement;
(t) any indebtedness incurred or guaranteed by VGX or 4.6.6 no Encumbrance has been imposed on any of its Subsidiaries for borrowed money the Acquired Assets except Permitted Encumbrances;
4.6.7 Seller has not cancelled or waived any commitment to borrow money entered into by VGX or any rights in respect of its Subsidiaries in excess of $500,000the Acquired Assets, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable except in the ordinary course of businessbusiness of Seller;
(u) 4.6.8 there has been no material change in any commencement accounting method, policy or practice of Legal Proceedings by VGX Seller, except as pursuant to the Interim Management Services Agreement, with respect to the Acquired Assets or any of its SubsidiariesLicensed Operations;
4.6.9 Seller has not entered into or agreed to enter into any transaction outside the ordinary course of business of Seller which may cause a liability or obligation of Seller in excess of Seventy-Five Thousand Dollars (v) any acquisition or disposition of any equity interest in any other Person$75,000), except as pursuant to the Interim Management Services Agreement; orand
(w) 4.6.10 Seller has not entered into any agreement by VGX or on behalf of Seller with any of its Subsidiaries physician, except as pursuant to do any of the foregoingInterim Management Services Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Absence of Certain Changes or Events. Since the Interim Buyer Balance Sheet Date to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, this Agreement (i) with respect to VGX the representation and its Subsidiaries other than VGXI warranty made as of the date of this Agreement) and to the Closing Date (with respect to the representation and warranty made as of the Closing Date):
(a) there has not been any material adverse change in the condition (financial or (ii) with respect to VGXI onlyotherwise), to the Knowledge operations, prospects or results of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any operations of Buyer and its SubsidiariesSubsidiaries taken as a whole;
(b) neither Buyer nor any resignation of its Subsidiaries has amended or termination changed its Charter Documents;
(c) neither Buyer nor any of its Subsidiaries has declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any Equity Security or any other security;
(d) neither Buyer nor any of its Subsidiaries has split, combined or reclassified any Equity Security or other security, or issued, or authorized for issuance, any Equity Security or other security;
(e) neither Buyer nor any of its Subsidiaries has altered any term of any outstanding Equity Security or other security;
(f) neither Buyer nor any of its Subsidiaries has (i) except in the ordinary course of business, increased or modified the compensation or benefits payable or to become payable by VGX Buyer or any of its Subsidiaries to any of its current or former directors, employees, contractors or consultants, (ii) except as provided for in this Agreement, increased or modified any executive officer bonus, severance, termination, pension, insurance or directorother employee benefit plan, payment or arrangement made to, for or with any current or former directors, employees, contractors or consultants of Buyer or any of its Subsidiaries, or (iii) entered into any employment, severance or termination agreement;
(cg) other than the sale of inventory in the ordinary course of business, neither Buyer nor any written notice of its Subsidiaries has sold, leased, transferred or assigned any actual property or threatened termination assets of Buyer or any such Subsidiary;
(h) neither Buyer nor any of its Subsidiaries has incurred, assumed or guaranteed any Indebtedness;
(i) neither Buyer nor any of its Subsidiaries has created or assumed any Lien on any asset, except for Liens arising under lease financing arrangements existing as of the Buyer Interim Balance Sheet Date and Permitted Liens;
(j) neither Buyer nor any of its Subsidiaries has made any loan, advance or capital contribution to, or investment in, any Person other than travel loans or advances in the ordinary course of business consistent with past practice;
(k) there has not been any labor dispute, other than individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX employees of Buyer or any of its Subsidiaries;
(dl) none of Buyer or the Subsidiaries of Buyer has agreed or entered into any arrangement to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this ARTICLE IV untrue or incorrect;
(m) there has not been any material damage, destruction or loss (with respect to the property and assets of Buyer or any of its Subsidiaries, whether or not covered by insurance;
(n) materially and adversely affecting neither Buyer nor any of the material assetsits Subsidiaries has made any change in accounting practices;
(o) neither Buyer nor any of its Subsidiaries has made any Tax election, changed its method of Tax accounting or settled any material portion claim for Taxes; or
(p) none of the assets, of VGX Buyer or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiarieshas agreed, and no Person has notified VGX or any of its Subsidiaries whether in writing that itor otherwise, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (La Cortez Energy, Inc.), Stock Purchase Agreement (Avante Petroleum S.A.)
Absence of Certain Changes or Events. Since the date of VGX the Pathlore Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
been: (ai) any Material Adverse Effect on VGX on any of its Subsidiaries;
Pathlore, (b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock Pathlore’s or any capital stock of its Subsidiaries;
(n) ’ capital stock, or any purchase, redemption or other acquisition by VGX or any of its Subsidiaries Pathlore of any of VGX the Pathlore Capital Stock or any other securities of VGX Pathlore or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities securities; (iii) any granting by Pathlore of any increase in compensation or fringe benefits, except for repurchases from VGX Employees following their termination pursuant normal increases of cash compensation to the terms of their precurrent non-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock officer employees in the ordinary course of business under the VGX Option Planconsistent with past practice, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(piv) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease payment by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX Pathlore or any of its Subsidiaries of any indebtedness bonus, except for bonuses made to current employees in the ordinary course of business consistent with past practice, (v) any granting by Pathlore or waiver any of its Subsidiaries of any rights increase in severance or termination pay, (vi) any entry by Pathlore 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 Pathlore of the nature contemplated hereby; (vii) any material to VGXchange by Pathlore in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, (viii) any revaluation by Pathlore of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable in either case other than in the ordinary course of business;
, which such revaluations are, individually, or in the aggregate, material, or (tix) any indebtedness incurred or guaranteed agreement by VGX Pathlore or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries Pathlore Subsidiary to do any of the foregoingthings described in the preceding clauses (i) through (ix) of this Section 2.6 (other than negotiations with SumTotal and its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Merger Agreement (Sumtotal Systems Inc), Agreement and Plan of Merger (Sumtotal Systems Inc)
Absence of Certain Changes or Events. The Company maintains a standard system of accounting established and administered in accordance with GAAP. The Company's unaudited balance sheet as of July 31, 2004 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, 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 of VGX the Company Balance Sheet, VGX and each of its Subsidiaries the Company has conducted its business in all material respects in the ordinary course consistent with past practice and, since such date, there has not occurred: (i) with respect any change, development, event or other circumstance, situation or state of affairs that has had or would reasonably be expected to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any have a Material Adverse Effect on VGX on any of its Subsidiaries;
the Company; (bii) any resignation amendments to or termination by VGX or any changes in either of its Subsidiaries of any executive officer or director;
the Company Charter Documents; (ciii) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damagedamage to, destruction or loss of any asset of the Company (whether or not covered by insurance) materially and adversely affecting any of that would reasonably be expected to have a Material Adverse Effect on the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
Company; (eiv) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries the Company in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
; (jv) any material revaluation by VGX or any of its Subsidiaries the Company of any of its assets, including including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishmentbusiness consistent with past practice, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Planboth frequency and amount, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) in any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations event in excess of $500,000 individually or $1,000,000 in the aggregate;
50,000; (svi) any cancellation by VGX sale of a material amount of assets (tangible or any intangible) of its Subsidiaries of any indebtedness the Company; or waiver of any rights material to VGX, except in the ordinary course of business;
(tvii) any indebtedness incurred other action or guaranteed by VGX event that would have required the consent of Purchaser pursuant to Section 4.1 had such action or any event occurred after the date of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthis 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. Since the date of VGX Interim Balance SheetSheet Date, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXexcept as disclosed on SCHEDULE 4.10, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect on VGX on as of the date hereof, material adverse change in the business, operations, condition (financial or otherwise), assets or liabilities of each of the Acquired Companies;
(i) except for normal periodic increases in the ordinary course of business consistent with past practice, increase in the compensation payable or to become payable by each of the Acquired Companies to any of its Subsidiaries;
officers, employees or agents (bcollectively, "PERSONNEL"), (ii) any resignation bonus, incentive compensation, service award or termination by VGX other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of any of its Subsidiaries the Personnel, (iii) employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by each of the Acquired Companies for any executive officer Personnel except pursuant to the existing plans and arrangements described in the Disclosure SCHEDULES hereto, or director(iv) new employment agreement to which each of the Acquired Companies is a party;
(c) any written notice addition to or modification of any actual the employee benefit plans, arrangements or threatened termination by any material customer, supplier, partner, licensor, licensee practices affecting Personnel other than (i) contributions made for 1998 in accordance with the normal practices of the Company or (ii) the extension of coverage to other third party having business relations with VGX or any of its SubsidiariesPersonnel who became eligible after the Interim Balance Sheet Date;
(d) sale, assignment or transfer of any material assets of each of the Acquired Companies other than in the ordinary course;
(e) cancellation of any indebtedness or waiver of any rights of substantial value to each of the Acquired Companies, whether or not in the ordinary course of business;
(f) amendment, cancellation or termination of any Contract, license or other instrument material to any of the Acquired Companies;
(g) capital expenditure or commitments for capital expenditures or the execution of any lease by any of the Acquired Companies, involving payments in excess of Fifty Thousand Dollars ($50,000) in the aggregate;
(h) failure to operate the business of any of the Acquired Companies in the ordinary course so as to use reasonable efforts to preserve the Business intact, to keep available the services of the Personnel, and to preserve the goodwill of each of the Acquired Companies' suppliers, customers and others having business relations with any of the Acquired Companies;
(i) change in accounting methods or practices by any of the Acquired Companies;
(j) revaluation by any of the Acquired Companies of any of its respective assets, including without limitation, writing off notes, inventory or accounts receivable;
(k) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;Acquired Companies; or
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, indebtedness incurred by any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries Acquired Companies for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000the Acquired Companies, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingAcquired Companies.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Usinternetworking Inc), Stock Purchase Agreement (Usinternetworking Inc)
Absence of Certain Changes or Events. Since Except as set forth in Schedule 5.6 attached hereto(for the date purposes of VGX Balance Sheet, VGX and each this Section 5.6 any disclosure under one subsection of its Subsidiaries has conducted its business in Section 5.6 will be deemed to be a disclosure under the ordinary course consistent with past practice andother subsections of Section 5.6 if such disclosure is cross-referenced), since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXMeasurement Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any event, damage, destruction or loss, whether covered by insurance or not, which has had or reasonably is expected to have a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation entry by the Company into a commitment or termination by VGX or any transaction material to the Company, which is not in the ordinary course of its Subsidiaries of any executive officer or directorbusiness consistent with prior practice;
(c) any written notice of any actual change by the Company in accounting principles, methods or threatened termination practices, except insofar as may have been required by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesa change in GAAP;
(d) any damagedeclaration, destruction payment or loss (whether setting aside for payment of any dividends or not covered by insurance) materially and adversely affecting any distributions in respect to shares of the material assetsCompany Capital Stock, or any material portion redemption, purchase or other acquisition of the assets, any shares of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesCompany Capital Stock;
(e) any commencement cancellation of Legal Proceedings against VGX any debts or waiver or release of any right or claim of its Subsidiaries, and no Person has notified VGX the Company individually or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable aggregate material to any officer the Company, whether or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than not in the ordinary course of business;
(f) any revaluations by the Company of any of its Assets or liabilities, including without limitation, writing-off notes or accounts receivable;
(g) any increase in the rate or terms of compensation payable or to become payable by the Company to any Company Personnel; any bonus, incentive compensation, service award or other benefit granted, made or accrued, contingently or otherwise, for or to the credit of any Company Personnel; employee welfare, pension, retirement, profit-sharing or similar
(h) any Tax election or settlement or compromise by the Company of any federal, state, local or foreign Tax liability;
(i) any adoption of a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or other reorganization of the Company, other than in connection with the transactions contemplated hereby;
(j) any purchase, acquisition or sale by the Company of any assets, other than in the ordinary course of business consistent with prior practice;
(k) any establishmentaddition to, termination or amendment modification of, the Employee Plans, arrangements or practices existing on the Measurement Date which affect any Company Personnel, other than any addition or modification required by Law or the extension of any VGX Employee Plancoverage to Company Personnel who became eligible after the Measurement Date;
(l) any material increase of severance amendment, cancellation or termination pay of any Material Contract, including, without limitation, license or sublicense, or other instrument to any employee of VGX which the Company is a party or to which the Company or any Subsidiary of VGXthe Assets of the Company is bound;
(m) any declaration, setting aside or payment failure to pay when due any material obligation of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiariesthe Company;
(n) any purchasefailure to operate the business of the Company in the ordinary course with an effort to preserve the business intact, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant keep available to the terms Company the services of their pre-existing stock option or purchase agreementspersonnel, and to preserve for the Company the goodwill of their customers and others having business relations with the Company;
(o) any issuance or reservation for issuance by VGX or any Assets of its Subsidiaries of, or commitment of it the Company subjected to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2a Lien;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000the Company, or any loans made or agreed to be made by VGX the Company, involving more than $10,000 individually or $25,000 in the aggregate; 28 (q) any of its Subsidiariesliabilities incurred by the Company involving $10,000 or more individually and $25,000 or more in the aggregate, other than reasonable travel and entertainment expense advances and trade accounts receivable liabilities incurred in the ordinary course of businessbusiness consistent with past practices;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Vans Inc)
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXSheet ------------------------------------ Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material change in the condition (financial or otherwise), assets, liabilities, working capital, reserves, earnings, business or prospects of the Company or employee, Customer or supplier relations, except for (i) changes contemplated hereby or changes, individually or in the aggregate, which have not resulted in and could not be reasonably expected to result in an Adverse Effect on VGX on and (ii) changes in the ordinary course of business consistent with past practice or changes occurring as a result of general economic or financial conditions or other developments which are not unique to the Company;
(i) except for normal periodic increases in the ordinary course of business consistent with past practice, increase in the compensation payable or to become payable by the Company to any of its Subsidiaries;
officers, employees or agents (bcollectively, "Personnel") any resignation other than senior management employees, (ii) --------- material increase in the compensation payable or termination to become payable by VGX or the Company to any of its Subsidiaries senior management employees, (iii) bonus, incentive compensation, service award or other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of any executive officer of the Personnel, (iv) employee welfare, pension, retirement, profit-sharing or directorsimilar payment or arrangement made or agreed to by the Company for any Personnel, except pursuant to the existing plans and arrangements described in the Disclosure Schedule, or (v) new employment or consulting agreement to which the Company is a party;
(c) any written notice addition to or modification of any actual the employee benefit plans, arrangements or threatened termination by any material customer, supplier, partner, licensor, licensee practices described in the Disclosure Schedule affecting Personnel other than (i) contributions made for the Company's 1997 and 1998 fiscal years in accordance with the normal practices of the Company or (ii) the extension of coverage to other third party having business relations with VGX or any of its SubsidiariesPersonnel who became eligible after the Balance Sheet Date as set forth in the Disclosure Schedule;
(d) sale, assignment or transfer of any of the assets of the Company, material singly or in the aggregate, other than in the ordinary course of business and consistent with past practices;
(e) cancellation of any Indebtedness or waiver of any rights of substantial value to the Company, other than in the ordinary course of business and consistent with past practice;
(f) amendment, cancellation or termination (except upon expiration) of any Contract, Permit or other instrument material to the Company, other than in the ordinary course of business consistent with past practice;
(g) capital expenditure or execution of any Lease or any incurring of liability therefor, in each case, involving payments in excess of $25,000 in the aggregate (excluding acquisition of route businesses by the Company disclosed on the Disclosure Schedule);
(h) failure to repay any obligation of the Company, except in the ordinary course of business or where such failure would not reasonably be expected to result in an Adverse Effect;
(i) other than in the ordinary course of business consistent with past practices, failure to use good faith efforts to preserve the Business intact, to keep available to Buyer the services of the Personnel, and to preserve for Buyer the goodwill of the Company's suppliers, customers and others having business relations with it;
(j) failure to operate the Business in the ordinary course and consistent with past practices;
(k) material change in accounting methods or practices by the Company affecting its assets, liabilities or business, except as required by GAAP;
(l) material revaluation by the Company of any of the Purchased Assets, including without limitation, writing off notes or accounts receivable, except in the ordinary course of business consistent with past practices;
(m) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the Business, the Purchased Assets (in the aggregate) or business prospects of VGX or any of its Subsidiariesthe Company;
(en) creation of any commencement Encumbrance on any asset of Legal Proceedings against VGX or any of its Subsidiariesthe Company, and no Person has notified VGX or any of its Subsidiaries in writing that itincluding, and there is no reason to reasonably believe that any Personwithout limitation, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case Purchased Assets, not in the ordinary course of business and or consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)practice;
(go) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital Stock or any capital stock or other Equity Interests of its Subsidiariesthe Company or any redemption, purchase or other acquisition of any of any security or other Equity Interest of the Company;
(np) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries the Company of, or commitment of it the Company to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it ofissue, any shares of capital stock or other equity securities or obligations or securities convertible into or exchangeable for shares of capital stock or other equity securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) Indebtedness incurred by the Company or any amendment of commitment to incur Indebtedness entered into by the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations Company in excess of an amount greater than $500,000 individually or $1,000,000 25,000 in the aggregate;
(sr) any cancellation by VGX liabilities involving $25,000 or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXmore, except in the ordinary course of businessbusiness and consistent with past practice, or any material increase or change in any assumptions underlying or methods of calculating any bad debt, contingency or other reserves;
(s) payment, discharge or satisfaction of any liabilities other than the payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the Balance Sheet or incurred in the ordinary course of business and consistent with past practice since the Balance Sheet Date or (ii) of other liabilities involving $10,000 or more singly and $30,000 or more in the aggregate;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries the Company to do any of the foregoing; or
(u) other event or condition of any character which in any one case or in the aggregate has, or any event or condition known to the Company or any Shareholder which it is reasonable to expect will, in any one case or in the aggregate, result in an Adverse Effect.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since January 1, 2001, except (i) as disclosed in any Regulatory Reporting Document filed since January 1, 2001 and prior to the date hereof or (ii) as set forth in Section 5.16 of VGX Balance Sheetthe Company Disclosure Memorandum, VGX and each neither the Company nor any of its Subsidiaries has conducted (a) incurred any liability which has had a Company Material Adverse Effect, (b) suffered any change in its business Condition which would have a Company Material Adverse Effect, other than changes after the date hereof which affect the banking industry as a whole, (c) failed to operate its business, in all material respects, in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been prudent banking practices or (iid) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in changed any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;accounting practices.
(b) any resignation or termination by VGX or Except as set forth in Section 5.16 of the Company Disclosure Memorandum, since December 31, 2005, neither the Company nor any of its Subsidiaries has:
(i) entered into any agreement, commitment or transaction other than in the ordinary course of any executive officer or directorbusiness consistent with prudent banking practices;
(cii) any written notice incurred, assumed or become subject to, whether directly or by way of any actual guaranty or threatened termination by otherwise, any material customerobligations or liabilities (absolute, supplieraccrued, partner, licensor, licensee contingent or other third party having business relations with VGX or any of its Subsidiaries;
(dotherwise) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past prudent banking practices;
(iii) permitted or allowed any of its property or assets to become subject to any mortgage, pledge, lien, security interest, encumbrance, restriction or pursuant to existing contractual commitments), including the making charge of any loan to such person kind (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness and consistent with prudent banking practices;
(kiv) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Planconsistent with prudent banking practices, and (iii) issuances upon exercise canceled any debts, waived any claims or rights, or sold, transferred or otherwise disposed of VGX Warrants any its properties or other rights disclosed pursuant to Section 2.2assets;
(pv) except for regular salary increases granted in the ordinary course of business consistent with prior practice, granted any splitincrease in compensation or paid or agreed to pay or accrue any bonus, combination percentage compensation, service award, severance payment or reclassification like benefit to or for the credit of any director, officer, employee or agent, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended or terminated any Company Benefit Plan;
(vi) directly or indirectly declared, set aside or paid any dividend or made any distribution in respect with capital stock, or redeemed, purchased or otherwise acquired any shares of VGX Capital Stock or the its capital stock of any or other of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect ofsecurities, in lieu of or in substitution except for any VGX Capital Stock or dividends paid to the capital stock of any of Company by its Subsidiaries;
(qvii) organized or acquired any amendment capital stock or any other equity securities or acquired any equity or ownership interest in any Person (except for settlement of indebtedness, foreclosure or the Certificate exercise of Incorporation creditors’ remedies or By-Laws in a fiduciary capacity, the ownership of VGXwhich does not expose the Company or its Subsidiaries to any liability from the business, operations or liabilities of such Person);
(rviii) except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any capital expenditure transaction, or execution of entered into, modified or amended any lease by VGX involving remaining payments contract or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXcommitment, except other than in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel business and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personconsistent with prudent banking practices; or
(wix) agreed, whether in writing or otherwise, to take any agreement by VGX or action the performance of which would change the representations contained in this Section 5.16(b) in the future so that any of its Subsidiaries to do any such representation would not be true in all material respects as of the foregoingClosing.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as set forth and described in Disclosure Schedule 3.6, since December 31, 1996, there has been no change in the date business, operations, or condition (financial or otherwise) of VGX Balance Sheetthe Station, VGX the Assets (other than Excluded Assets), or liabilities of Seller which would have a Material Adverse Effect. Except as set forth and each of its Subsidiaries described in Disclosure Schedule 3.6, since December 31, 1996, Seller has conducted its business diligently and substantially in the ordinary course consistent with past practice andmanner heretofore conducted and only in the Ordinary Course of Business, since such dateand Seller has not prior to the date hereof (a) incurred an uninsured loss of, or significant injury to, any of the Assets (i) with respect to VGX and its Subsidiaries other than VGXI there Excluded Assets) as the result of any fire, explosion, flood, windstorm, earthquake, labor trouble, riot, accident, act of God or public enemy or armed forces, or other casualty in excess of Fifty Thousand Dollars ($50,000) in the aggregate, which loss or injury has not been replaced or repaired; (iib) with respect incurred, or become subject to, any obligation or liability (absolute or contingent, matured or unmatured, known or unknown), except liabilities incurred in the Ordinary Course of Business; (c) discharged or satisfied any Encumbrance or paid any obligation or liability (absolute or contingent, matured or unmatured, known or unknown) other than liabilities shown in the balance sheets furnished pursuant to VGXI onlySection 3.5, liabilities incurred since December 31, 1996 in the Ordinary Course of Business and repayment of indebtedness from the proceeds of the transactions contemplated by this Agreement; (d) mortgaged, pledged, or subjected to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on Encumbrance any of its Subsidiaries;
Assets (bother than the Excluded Assets) any resignation or termination by VGX or any other than in the Ordinary Course of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
Business; (e) any commencement of Legal Proceedings against VGX or any of its Subsidiariessold, and no Person has notified VGX or any of its Subsidiaries in writing that itexchanged, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practicestransferred, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business otherwise disposed of any of its Subsidiaries and Assets or canceled any debts or claims other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
Ordinary Course of Business; (if) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing written down the value of capitalized inventory any Assets except write-downs in the Ordinary Course of Business, none of which, individually or writing off notes or accounts receivable in the aggregate, constitutes a Material Adverse Effect; (g) entered into any transaction other than in the ordinary course Ordinary Course of business;
Business; (kh) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend onmade capital expenditures, or other distribution (whether entered into commitments therefor, materially in cash, stock, equity securities or property) in respect of, any excess of VGX Capital Stock or any budgeted capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than expenditures; (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) made any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest change in any other Personmethod of accounting or accounting practice except as may be required under GAAP; or
or (wj) made any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gray Communications Systems Inc /Ga/)
Absence of Certain Changes or Events. Since March 31, 1997, except as contemplated by this Agreement or the date of VGX Balance SheetRestructuring Agreement, VGX and each of its the Flo-Sun Subsidiaries has have conducted its business their businesses only in the ordinary course and in a manner consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Flo-Sun Material Adverse Effect on VGX on any of its Subsidiaries;
Effect, (b) any resignation change by the Flo-Sun Subsidiaries in their respective accounting methods, principles or termination practices, except as may be required by VGX or any of its Subsidiaries of any executive officer or director;
GAAP, (c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible properties or assets transactions involving less than $500,000 in of any one case Flo-Sun Subsidiary that, individually or $1,000,000 in the aggregate;
, is material to the Flo-Sun Subsidiaries taken as a whole, (i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(md) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect ofof shares of common stock of any Flo-Sun Subsidiary other than dividends or distributions to another Flo-Sun Subsidiary, (e) any revaluation by any Flo-Sun Subsidiary of any asset (including, without limitation, any writing down of VGX Capital Stock the value of inventory or any capital stock writing off of its Subsidiaries;
(n) any purchase, redemption notes or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockaccounts receivable), other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Planconsistent with past practice, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(pf) any split, combination entry by any Flo-Sun Subsidiary into any commitment or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights transaction material to VGXthe Flo-Sun Subsidiaries taken as a whole, except in the ordinary course of business;
business consistent with past practice, (tg) any indebtedness incurred increase in or guaranteed by VGX 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 any of its Subsidiaries for borrowed money restricted stock awards), stock purchase or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000other employee benefit plan, or any loans made other increase in the compensation payable or agreed to be made by VGX become payable to any officers or any key employees of its the Flo-Sun Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable except in the ordinary course of business;
business consistent with past practice, (u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(vh) any acquisition or disposition by the Flo-Sun Subsidiaries of any equity interest material asset, except in any other Person; or
the ordinary course of business consistent with past practice, (wi) any agreement by VGX incurrence, assumption or guarantee of any indebtedness or obligation relating to any lending or borrowing except current liabilities and commitments incurred in the ordinary course of business consistent with past practice, or (j) any amendment, modification or termination of any existing, or entering into any new, material contract, or any material plan, lease, license, permit or franchise, except in the ordinary course of its Subsidiaries to do any of the foregoingbusiness consistent with past practice.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetSheet Date, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, except (i) with respect to VGX and its Subsidiaries other than VGXI there has not been as otherwise set forth on Schedule 2.07 or (ii) with respect to VGXI onlyas otherwise expressly contemplated by this Agreement, to the Knowledge of VGX, there Company has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvenot:
(a) any Material Adverse Effect on VGX on any changed or amended its Articles of its SubsidiariesIncorporation or Bylaws;
(b) incurred any resignation obligation, debt or termination by VGX liability (whether fixed, absolute, accrued, contingent, known or any of its Subsidiaries unknown, or otherwise, of any executive officer kind or director;
(c) any written notice of any actual or threatened termination by any material customernature whatsoever), supplier, partner, licensor, licensee or except trade payables and other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX obligations (other than increases to Related Parties or any guarantees, obligations in each case in connection with general performance reviews and annual salary increases in each case respect of letters of credit or debt for borrowed money) incurred in the ordinary course of business and consistent with past practicespractice;
(c) discharged or satisfied any Lien or paid any obligation, debt or liability (whether fixed, absolute, accrued, contingent, secured and unsecured, known or unknown, or pursuant otherwise, and whether due or to existing contractual commitmentsbecome due, of any kind or nature whatsoever), including the making other than payments of any loan to such person obligations, debts or liabilities (other than advancement guarantees, obligations in respect of routine travelletters of credit or debt for borrowed money) in the ordinary course of business and consistent with past practice;
(d) mortgaged, entertainment pledged or subjected to any Lien (other than Permitted Liens) any of its assets or properties;
(e) transferred, leased or otherwise disposed of any of its assets or properties except to persons other than Related Parties for fair consideration in the ordinary course of business and consistent with past practice, or acquired any assets or properties, except from persons other than Related Parties in the ordinary course of business expenses)and consistent with past practice;
(f) declared, set aside or paid any distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or redeemed or otherwise acquired any of its capital stock or split, combined or otherwise similarly changed its capital stock or authorized the creation or issuance of or issued or sold any capital stock or any securities or obligations convertible into or exchangeable therefor, or given any person any right to acquire any capital stock from the Company, or agreed to take any such action;
(g) made any transaction loan or investment of the type described a capital nature, whether by purchase of stock or securities, contributions to capital, property transfers or otherwise, in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")any other partnership, corporation or other entity or person;
(h) canceled or compromised any sale, lease, license, assignment debt or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property)claim, other than sales debts of or licenses claims against persons other than Related Parties in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than consistent with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregatepast practice;
(i) waived or released any rights of material change by VGX or value, including without limitation, any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPIntangible Rights;
(j) transferred or granted any rights under or with respect to any Intangible Rights, or permitted any license, permit or other form of authorization relating to an Intangible Right to lapse;
(k) made or granted any wage, salary or benefit increase or bonus payment applicable to any group or classification of employees generally, entered into or amended the terms of any employment contract with, or made any loan to, or grant any severance benefits to, or entered into or amended the terms of any transaction of any other nature with, any Related Party;
(l) suffered any material revaluation casualty loss or damage (whether or not such loss or damage shall have been covered by VGX insurance);
(m) surrendered, had revoked or had terminated, any of its Subsidiaries of Governmental Permit or other material approval, authorization or consent from any of its assetscourt, including writing down the value of capitalized inventory administrative agency or writing off notes other governmental authority;
(n) delayed, postponed or accounts receivable otherwise failed to pay amounts owed or satisfy other liabilities when due, other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsbusiness and consistent with past practice;
(o) any issuance changed accounting methods or reservation for issuance by VGX practices or any revalued assets, liabilities or reserves or changed the calculation of its Subsidiaries ofbad debt, or commitment of it to issue or reserve for issuanceallowances, or the pledge contingencies or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;reserves; or
(p) entered into any split, combination agreement or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or take any of its Subsidiaries action described in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthis Section 2.07.
Appears in 1 contract
Samples: Stock Purchase Agreement (Health Management Systems Inc)
Absence of Certain Changes or Events. Since Between the Nanogen Balance Sheet Date and the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvethis Agreement:
(a) any there has not been a Nanogen Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation or termination by VGX or neither Nanogen nor any of its Subsidiaries of any executive officer has amended or directorotherwise modified its Charter Documents;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or neither Nanogen nor any of its SubsidiariesSubsidiaries has declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of its securities;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or neither Nanogen nor any of its Subsidiaries has split, combined or materially and adversely affecting the business of VGX or reclassified any of its Subsidiariessecurities, or issued, or authorized for issuance, any securities except for the grant of Nanogen Stock Options and the issuance of shares of Nanogen Common Stock upon exercise of Nanogen Stock Options, in each case, in the ordinary course of business consistent with past practice;
(e) neither Nanogen nor any commencement of Legal Proceedings against VGX its Subsidiaries has made any payment (except in the ordinary course of business) or materially increased any bonuses, salaries or other compensation or benefit payable or to become payable to any current or former stockholder, director, officer or employee, or entered into any material employment, severance or similar Contract with any current or former director, officer or employee;
(f) neither Nanogen nor any of its Subsidiaries has sold, leased, transferred or assigned any material property or assets of Nanogen or any of its Subsidiaries, except for the sale of inventory and no Person has notified VGX or any the grant of its Subsidiaries in writing that itlicenses on a non-exclusive basis, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)practice;
(g) neither Nanogen nor any transaction of its Subsidiaries has incurred, assumed or guaranteed any Indebtedness, or materially modified the terms of any Indebtedness outstanding as of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")Nanogen Balance Sheet Date;
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of neither Nanogen nor any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in has incurred any one case material Liability or $1,000,000 in the aggregatecreated or assumed any Lien on any material asset, except for Permitted Liens;
(i) there has not been any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stocklabor dispute, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000individual grievances, or any loans made activity or agreed proceeding by a labor union or representative thereof to be made by VGX or organize any employees of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX Nanogen or any of its Subsidiaries;
(vj) there has not been any acquisition violation of or disposition conflict with any Law to which the business, operations, assets or properties of any equity interest in any other Person; or
(w) any agreement by VGX Nanogen or any of its Subsidiaries are subject, except for any such violations and conflicts that could not reasonably be expected to have, individually or in the aggregate, a Nanogen Material Adverse Effect;
(k) there has not been any material damage, destruction or loss with respect to the material property and assets of Nanogen or any of its Subsidiaries, whether or not covered by insurance;
(l) neither Nanogen nor any of its Subsidiaries has made any change in accounting practices;
(m) neither Nanogen nor any of its Subsidiaries has made any Tax election, changed its method of Tax accounting or settled any claim for Taxes; and
(n) neither Nanogen nor any of its Subsidiaries has agreed, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since December 31, 2005, there has not been any Material Adverse Effect. From September 29, 2006 through the date of VGX Balance Sheetthis Agreement, VGX the Company and each of its Subsidiaries has have conducted its business their respective businesses in the ordinary course of business consistent with past practice and, since such dateexcept as otherwise contemplated by this Agreement, (i) with respect to VGX and neither the Company nor any of its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvehas:
(a) declared, set aside, made or paid any Material Adverse Effect on VGX on dividend or other distribution payable in cash, stock, property or otherwise with respect to any Equity Interests or any options, warrants, convertible securities or other rights to acquire any Equity Interest (except for regular quarterly dividends not exceeding $0.175 per share of its SubsidiariesCompany Common Stock and any dividends or distributions by a Subsidiary wholly owned, directly or indirectly, by the Company);
(b) reclassified, combined, split, subdivided, redeemed, purchased or otherwise acquired any resignation or termination by VGX Equity Interests of the Company or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls convertible securities or other rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to Equity Interest of the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX Company or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than the acquisition by the Company of Shares, Options, Stock Appreciation Rights, Restricted Shares and Stock Equivalents pursuant to the Benefit Plans);
(c) except as required by applicable Law of jurisdictions outside the United States, (i) the issuancegranted to any current or former directors, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Optionsofficers, (ii) the granting of options to purchase VGX Common Stock employees or consultants, any increase in compensation or fringe benefits, except for increases in the ordinary course of business with respect to employees who are not directors or officers of the Company, (ii) granted to any current or former directors, officers or employees, any right to receive severance or termination pay not provided for under a Benefit Plan or Foreign Plan listed on Section 4.14 of the VGX Option Plan, and Company Disclosure Letter or (iii) issuances upon exercise entered into, amended or modified any Benefit Plans or employment, change of VGX Warrants control or other rights disclosed pursuant to Section 2.2severance Contract with any of its current or former directors, officers, employees or consultants;
(pd) (i) acquired, leased or licensed from any Person (by merger, consolidation, acquisition of stock or assets or otherwise) or sold, disposed of, leased or licensed (by merger, consolidation, sale of stock or assets or otherwise) any splitcorporation, combination partnership or reclassification of other business organization or division thereof, any of VGX Capital Stock Equity Interests therein or any assets, in each case, which are material to the capital stock of any of Company and its Subsidiaries' or issuance or authorization , taken as a whole, other than purchases and sales of issuance of any inventory, non-merchandise supplies, and other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except assets in the ordinary course of businessbusiness or (ii) incurred or guaranteed, or modified in any material respect, any Indebtedness or made any loans, advances or capital contributions to, or investments in, any other Person (other than a Subsidiary of the Company);
(te) made any indebtedness incurred changes in accounting policies or guaranteed procedures, except as required by VGX GAAP or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessa Governmental Authority;
(uf) made or revoked any commencement of Legal Proceedings material Tax election, or changed any material Tax accounting principles, except as required by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personapplicable Law; or
(wg) any agreement by VGX or any of its Subsidiaries agreed to do take any of the foregoingactions described in Sections 4.9(a) through 4.9(g).
Appears in 1 contract
Samples: Merger Agreement (Harland John H Co)
Absence of Certain Changes or Events. Since Except as disclosed herein or in the VERITAS SEC Documents filed prior to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice andthis Agreement, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI the VERITAS Balance Sheet Date there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
occurred: (a) any change not identified below that could reasonably be expected to have a Material Adverse Effect on VGX on any of its Subsidiaries;
VERITAS; A-1-24 25 (b) any resignation amendments or termination by VGX changes in the Articles of Incorporation or any Bylaws of its Subsidiaries of any executive officer or director;
VERITAS; (c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (loss, whether or not covered by insurance) insurance or not, materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of VERITAS; (d) any redemption, repurchase or other acquisition of its Subsidiaries and shares of VERITAS Common Stock by VERITAS (other than pursuant to arrangements with respect to tangible assets transactions involving less than $500,000 in any one case terminated employees or $1,000,000 in the aggregate;
(i) any material change by VGX consultants), or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
to VERITAS Common Stock; (ne) any purchase, redemption increase in or other acquisition modification of the compensation or benefits payable or to become payable by VGX or VERITAS to any of its Subsidiaries of any of VGX Capital Stock directors or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXemployees, except in the ordinary course of business;
, consistent with past practice; (tf) other than as required by applicable statute or regulation, any indebtedness incurred increase in or guaranteed by VGX modification of any bonus, pension, insurance or VERITAS Employee Plan or VERITAS Benefit Arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiariesemployees, other than reasonable travel and entertainment expense advances and trade accounts receivable (a) in the ordinary course of business;
, consistent with past practice, and (ub) any commencement after the date of Legal Proceedings by VGX or any of its Subsidiaries;
this Agreement, which is authorized, if required, pursuant to Section 5.3 below; (vg) any acquisition or disposition sale of a material amount of property or assets of VERITAS, other than in the ordinary course of business, consistent with past practice; (h) any alteration in any term of any equity interest outstanding security of VERITAS, including, but not limited to, acceleration of the vesting or any change in the terms of any outstanding stock options;
(i) other than in the ordinary course of business, consistent with past practice, the total amount of which is not material, any (A) incurrence, assumption or guarantee by VERITAS of any debt for borrowed money; (B) issuance or sale of any securities convertible into or exchangeable for debt securities of VERITAS; or (C) issuance or sale of options or other rights to acquire from VERITAS, directly or indirectly, debt securities of VERITAS or any securities convertible into or exchangeable for any such debt securities; (j) any creation or assumption by VERITAS of any mortgage, pledge, security interest, lien or other encumbrance on any asset other than in the ordinary course of business, consistent with past practice, not in excess of $100,000 in the aggregate; (k) any making of any loan, advance or capital contribution to or investment in any person other Personthan (i) loans, advances or capital contributions made in the ordinary course of business of VERITAS, and (ii) other loans and advances, where the aggregate amount of all such items outstanding at any time does not exceed $50,000; (l) any entering into, amendment of, relinquishment, termination or non-renewal by VERITAS of any material contract, lease transaction, commitment or other right or obligation other than in the ordinary course of business; (m) any transfer or grant of a right under the VERITAS IP Rights (as defined in Section 3.15 below), other than those transferred or granted in the ordinary course of business, consistent with past practices, except for any grant of a right to VERITAS source code or grant of any exclusive rights to any VERITAS IP Rights, each of which shall be set forth in the VERITAS Disclosure letter; (n) any labor dispute or charge of unfair labor practice (other than routine individual grievances), any activity or proceeding by a labor union or representative thereof to organize any employees of VERITAS or
, to VERITAS' knowledge, any campaign being conducted to solicit authorization from employees to be represented by such labor union; or (wo) any agreement by VGX VERITAS, or to VERITAS' knowledge, any of its Subsidiaries officer or employee thereof, to do take any of the foregoingactions described in the preceding clauses (a) through (n) (other than negotiations with OpenVision and its representatives regarding the transactions contemplated by this Agreement.) A-1-25 26 3.11
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Veritas Software Corp)
Absence of Certain Changes or Events. Since the date of VGX Balance SheetDecember 31, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1997, there has not been nor has VGX been asked to act any material adverse change in the business, financial condition, operations, results of operations or future prospects of the Company or any management or stockholder capacity to allow for or approveof its Subsidiaries. Without limiting the generality of the foregoing, since that date and except as otherwise disclosed in SCHEDULE 3.09:
(a) any Material Adverse Effect on VGX on none of the Company and its Subsidiaries has sold, leased, transferred, or assigned any of its Subsidiaries;Assets, tangible or intangible, other than sales to its customers for fair consideration in the Ordinary Course of Business or other than as fully reflected on the face of the Interim Balance Sheet; THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED
(b) any resignation or termination by VGX or any none of the Company and its Subsidiaries has entered into any agreement, Contract, lease or license (or series of any executive officer or directorrelated agreements, Contracts, leases and licenses) outside the Ordinary Course of Business;
(c) there is no fact, condition or event relating to (i) the potential loss of the benefit of, or any written notice *** change in, any relationship with any customers, clients, suppliers, key employees or insurers, or (ii) price increases for parts, raw materials, supplies, services or equipment purchased from present suppliers or vendors which is, with the lapse of time or the occurrence of such event or condition, reasonably likely to be materially adverse to the financial condition, business, Assets, properties or operations of the Company;
(d) no party (including any of the Company and its Subsidiaries) has accelerated, terminated, modified or canceled any agreement, Contract, lease or license (or series of related agreements, Contracts, leases and licenses) to which any of the Company and its Subsidiaries is a party or by which any of them is bound;
(e) none of the Company and its Subsidiaries has imposed any Security Interest upon any of its Assets, tangible or intangible;
(f) none of the Company and its Subsidiaries has made any capital expenditure (or series of related capital expenditures) either involving more than *** or outside the Ordinary Course of Business;
(g) none of the Company and its Subsidiaries has made any capital investment in, any loan to, or any acquisition of the securities or Assets of, any other Person (or series of related capital investments, loans, and acquisitions);
(h) none of the Company and its Subsidiaries has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation;
(i) none of the Company and its Subsidiaries has delayed or postponed the payment of accounts payable or other Liabilities outside the Ordinary Course of Business;
(j) none of the Company and its Subsidiaries has canceled, compromised, waived or released any right or claim (or series of related rights and claims); THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED
(k) none of the Company and its Subsidiaries has granted any license or sublicense of any actual rights under or threatened termination by with respect to any material customerIntellectual Property;
(l) there has been no change made or authorized in the Articles of Incorporation or By-Laws or equivalent organizational documents, supplierin each case as amended or restated, partner, licensor, licensee or other third party having business relations with VGX of the Company or any of its Subsidiaries;
(dm) none of the Company and its Subsidiaries has issued, sold or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(n) none of the Company and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(o) none of the Company and its Subsidiaries has experienced any damage, destruction or loss Loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of to its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) none of the Company and its Subsidiaries has made any splitloan to, combination or reclassification of entered into any of VGX Capital Stock or the capital stock of other transaction with, any of its Subsidiaries' directors, officers or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesemployees;
(q) any amendment none of the Certificate Company and its Subsidiaries has entered into any employment Contract or collective bargaining agreement, written or oral, or modified the terms of Incorporation any such Contract or By-Laws agreement existing as of VGXthe date hereof;
(r) none of the Company and its Subsidiaries has granted any capital expenditure or execution increase in the base compensation of any lease by VGX involving remaining payments of its directors, officers or obligations in excess of $500,000 individually or $1,000,000 in the aggregateemployees;
(s) none of the Company and its Subsidiaries has adopted, amended, modified or terminated any cancellation by VGX bonus, profit-sharing, incentive, severance or other plan, Contract or commitment for the benefit of any of its Subsidiaries of directors, officers and employees (or taken any indebtedness or waiver of such action with respect to any rights material to VGX, except in the ordinary course of businessother Employee Benefit Plan);
(t) none of the Company and its Subsidiaries has made any indebtedness incurred or guaranteed by VGX or other change in employment terms for any of its Subsidiaries for borrowed money directors, officers or any commitment to borrow money entered into by VGX or any employees outside the Ordinary Course of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
Business; THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED (u) none of the Company and its Subsidiaries has made or pledged to make any commencement of Legal Proceedings by VGX charitable or any of its Subsidiariesother capital contribution;
(v) any acquisition or disposition of any equity interest in there has not been any other Personoccurrence, event, incident, action, failure to act or transaction outside the Ordinary Course of Business involving the Company; orand
(w) any agreement by VGX or any none of the Company and its Subsidiaries has committed to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Absence of Certain Changes or Events. Since Except as set forth on Schedule 5.4, since the date Balance Sheet Date, there has not been any material adverse effect on the business, operations, results of VGX operations, assets, properties or financial condition of the Business; excluding (i) the failure of any of the employees of Sellers other than those listed on Schedule 7.6 to accept employment with the Buyer or FTI or (ii) the effect of any delisting of the capital stock of Nextera from the Nasdaq SmallCap Stock Market ("MATERIAL ADVERSE EFFECT"). Nextera has not declared, set aside or paid any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class, redemption or series of its capital stock or other equity interests. In addition to the foregoing, none of Sellers nor Nextera have:
(a) authorized or issued capital stock of Sellers or Nextera; granted any stock option or right to purchase shares of capital stock of Sellers or Nextera; issued any security convertible into such capital stock; granted of any registration rights; purchased, redeemed, retired, or otherwise acquired, by Sellers or Nextera, any shares of any such capital stock; or declared or paid any dividend or other distribution in respect of shares of such capital stock;
(i) sold, leased, transferred or disposed of any material assets or rights or (ii) acquired or leased any material assets or rights;
(c) paid, discharged or satisfied any material liability, obligation or lien with respect to underlying obligations, other than payment, discharge or satisfaction of (i) Indebtedness as it matured and became due and payable; (ii) liabilities, obligations or liens in the ordinary course of business consistent with past practice; or (iii) as otherwise specifically contemplated by this Agreement;
(d) materially (i) changed any of the accounting or tax principles, practices or methods or (ii) changed reserve policies or reserves;
(i) made any change in the compensation payable to any of its officers, directors, employees, consultants, agents or sales associates (other than general increases in wages to employees and/or payments to consultants, agents or sales associates in the ordinary course consistent with past practice), (ii) entered into or amended any material employment, severance, consulting, termination, other agreement or (iii) made any material change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(i) paid or made any accrual or arrangement for payment of any pension, retirement allowance, unused vacation days or other employee benefit to any officer, director, employee, sales associate or affiliate, except payments and accruals made in the ordinary course consistent with past practice; (ii) adopted or paid, granted, issued, accelerated or accrued salary or other payments or benefits which include any payment in equity or cash payments pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement except, in each case, in the ordinary course; or (iii) amended in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(g) made any borrowing or agreement to borrow funds by Sellers or incurred any other obligation or liability, contingent or otherwise, which would remain as a liability of the Business following the Closing, except liabilities reflected on the June Balance Sheet; or any endorsement, VGX and each assumption or guarantee of its Subsidiaries has conducted its business payment or performance of any loan or obligation of any other individual, firm, corporation or other entity which would remain as a liability of the Business following the Closing, except as reflected on the June Balance Sheet;
(h) made any mortgage, pledge, lien, security interest, hypothecation, charge or other encumbrance with respect to the Assets;
(i) made any material write downs of the value of any Asset or any material write downs as uncollectible of any accounts receivable or portion thereof;
(j) made any payments (other than compensation in the ordinary course consistent with past practice), loans, advances or other distributions to, or entered into any transaction, agreement or arrangement with, any affiliates, officers, directors, employees, sales associates, stockholders or their respective affiliates;
(k) made or authorized any capital expenditures, except in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurancein excess of Twenty-Five Thousand Dollars ($25,000) materially and adversely affecting any of the material assets, individually or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
One Hundred Thousand Dollars (e$100,000) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(il) settled or compromised any material Tax liability or agreed to any adjustment of any material Tax attribute or made any election with respect to Taxes;
(m) made any material change by VGX or any of its Subsidiaries in its accounting methodsworking capital practices generally, principles including accelerating any collections of cash or practices, except as required by concurrent changes in US GAAPaccounts receivable or deferring payments or accruals;
(jn) incurred any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable liability other than in the ordinary course of business;
(ko) had a judgment entered or settled any establishmentLitigation resulting in a loss, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cashcost, stockafter receipt of insurance payments, equity securities individually or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course aggregate, in excess of business under the VGX Option Plan, and Twenty-Five Thousand Dollars (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2$25,000);
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiariesamended Sellers' or issuance Nextera's Formation Documents or authorization of issuance of altered through merger, liquidation, reorganization, restructuring or in any other securities in respect of, in lieu of fashion its respective corporate structure or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesownership;
(q) made any amendment of modification, waiver, change, amendment, release, rescission or termination of, or accord and satisfaction with respect to, any material contract, agreement, license or other instrument to which Sellers are a party, including all material customer/consulting agreements, other than any satisfaction by performance in accordance with the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except terms thereof in the ordinary course of business;
(tr) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or amended in an adverse manner any of its Subsidiaries in excess of $500,000agreement which had non-competition, geographical restriction or any loans made or agreed to similar covenants that would be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personmaterial; or
(ws) any agreement by VGX or any of its Subsidiaries agreed to do take any of the foregoingforegoing actions other than as permitted hereunder or any action which would reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since December 31, 2004 to the date of VGX Balance Sheethereof, VGX the Seller and each of its the Seller Subsidiaries has have conducted its business their businesses only in the ordinary course and in a manner consistent with past practice and, since such dateDecember 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2004, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any Material Adverse Effect on VGX on any change in the financial condition, results of its Subsidiaries;
(b) any resignation operations or termination by VGX business of the Seller or any of its the Seller Subsidiaries of any executive officer which has had, or director;
to the Seller’s Knowledge would reasonably be expected to have, a Seller Material Adverse Effect, (c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any assets of the Seller or any of the material assetsSeller Subsidiaries which has had, or any material portion of to the assetsSeller’s Knowledge would reasonably be expected to have, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
a Seller Material Adverse Effect, (eiii) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries the Seller in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(jiv) any material revaluation by VGX or any of its Subsidiaries the Seller of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than assets in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
respect, (mv) any declaration, setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital shares of Seller Common Stock or any capital stock of its Subsidiaries;
(n) any purchaseredemption, redemption repurchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries the securities of any indebtedness Seller Subsidiary, (vi) any increase in the wages, salaries, bonuses, compensation, pension or waiver other fringe benefits or perquisites payable to any executive officer, employee or director of the Seller or any Seller Subsidiary or any grant of any rights material to VGXseverance or termination pay, except in the ordinary course of business;business consistent with past practices, (vii) any strike, work stoppage, slow-down or other labor disturbance, (viii) the execution of any collective bargaining agreement or other Contract with a labor union or organization, or (ix) to the Seller’s Knowledge, any union organizing activities.
(tb) any indebtedness incurred To the Seller’s Knowledge, no third Person has used, with or guaranteed by VGX without permission, the corporate name, trademarks, trade names, service marks, logos, symbols or similar intellectual property of the Seller or any Seller Subsidiary in connection with the marketing, advertising, promotion or sale of its Subsidiaries for borrowed money such third Person’s products or services. Neither the Seller nor any commitment Seller Subsidiary is a party to borrow money entered into by VGX any joint marketing or other affinity marketing program with any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other third Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Marshall & Ilsley Corp/Wi/)
Absence of Certain Changes or Events. Since Except as disclosed in the SEC Reports, from the date of VGX Balance Sheetthe most recent financial statements contained in the SEC Reports to the date of this Agreement, VGX and each of its Subsidiaries Acquisition Corp. has conducted its business only in the ordinary course consistent with past practice andcourse, since and during such date, (i) with respect to VGX and its Subsidiaries other than VGXI period there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any change in the assets, liabilities, financial condition or operating results of Acquisition Corp. from that reflected in the financial statements contained in the SEC Reports, except changes in the ordinary course of business that have not caused, in the aggregate, an Acquisition Corp. Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation damage, destruction or termination loss, whether or not covered by VGX or any of its Subsidiaries of any executive officer or directorinsurance, that would have an Acquisition Corp. Material Adverse Effect;
(c) any written notice waiver or compromise by Acquisition Corp. of any actual a valuable right or threatened termination by any of a material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesdebt owed to it;
(d) any damagesatisfaction or discharge of any lien, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsclaim, or encumbrance or payment of any material portion obligation by Acquisition Corp., except in the ordinary course of business and the assets, satisfaction or discharge of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiarieswhich would not have an Acquisition Corp. Material Adverse Effect;
(e) any commencement of Legal Proceedings against VGX material change to a material Contract by which Acquisition Corp. or any of its Subsidiaries, and no Person has notified VGX assets is bound or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingsubject;
(f) any material increase change in the any compensation payable arrangement or agreement with any employee, officer, director or stockholder;
(g) any resignation or termination of employment of any officer of Acquisition Corp.;
(h) any mortgage, pledge, transfer of a security interest in or lien created by Acquisition Corp. with respect to any officer of its material properties or director of VGX (other than increases in each case in connection with general performance reviews assets, except liens for taxes not yet due or payable and annual salary increases in each case liens that arise in the ordinary course of business and consistent with past practices, that do not materially impair Acquisition Corp.’s ownership or pursuant to existing contractual commitments), including the making use of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties property or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change loans or guarantees made by VGX Acquisition Corp. to or for the benefit of its employees, officers or directors, or any members of its Subsidiaries in its accounting methodstheir immediate families, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than travel advances and other advances made in the ordinary course of its business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mj) any declaration, setting aside or payment or other distribution in respect of any dividend onof Acquisition Corp.’s capital stock, or any direct or indirect redemption, purchase, or other distribution (whether in cash, stock, equity securities or property) in respect of, acquisition of any of VGX Capital Stock or any capital such stock of its Subsidiariesby Acquisition Corp., except as provided in Section 6.8 hereof;
(nk) any purchase, redemption alteration of Acquisition Corp.’s method of accounting or other acquisition by VGX or any the identity of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsauditors;
(ol) any issuance of equity securities to any officer, director or reservation for issuance by VGX or any of its Subsidiaries ofaffiliate, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock except pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital existing Acquisition Corp. stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personoption plans; or
(wm) any agreement arrangement or commitment by VGX or any of its Subsidiaries Acquisition Corp. to do any of the foregoingthings described in this Section 4.22.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Base Balance SheetSheet Date, VGX SDK and each of its Precision and their respective Subsidiaries has conducted its have carried on their business in the ordinary course consistent substantially in accordance with past practice andthe procedures and practices in effect on the Base Balance Sheet Date.
(a) Except as set forth under Section 3.14 of the Precision Disclosure Schedule, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI the Base Balance Sheet Date there has not been or (ii) with respect to VGXI onlySDK, to the Knowledge Precision or any Subsidiary of VGX, there has not been nor has VGX been asked to act in any management SDK or stockholder capacity to allow for or approvePrecision:
(ai) any change, event, circumstance or effect, which by itself or in conjunction with all other such changes, whether or not arising in the ordinary course of business, has had or would reasonably be expected to have a Material Adverse Effect on VGX SDK or Precision or their respective Subsidiaries' ability to conduct the Business as presently conducted, or that is reasonably likely to impede the performance by SDK or Precision of their obligations under this Agreement or any of the Precision Ancillary Agreements;
(ii) any mortgage, Encumbrance or lien placed on any of its Subsidiariesthe properties of SDK or Precision or any Subsidiary of SDK or Precision except Permitted Encumbrances;
(biii) any resignation liability incurred by SDK or termination by VGX Precision or any Subsidiary of its Subsidiaries SDK or Precision other than in the ordinary course of any executive officer business or directorwhich obligations or liabilities do not exceed in the aggregate $50,000 through the date of this Agreement;
(civ) any written notice of any actual or threatened termination by any material customerpurchase, supplierlicense, partner, licensor, licensee sale or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsdisposition, or any material portion of agreement or other arrangement for the assetspurchase, license, sale or other disposition, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (assets other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practicespractice or which do not exceed an aggregate of $50,000 through the date of this Agreement;
(v) any material damage, destruction or pursuant to existing contractual commitments), including the making loss of any loan material property or asset, whether or not covered by insurance;
(vi) any labor dispute or claim of unfair labor practices;
(vii) any increase in the compensation payable or to such person become payable to any of SDK or Precision's or any of their respective Subsidiaries' officers (other than advancement for the Shareholders in a manner consistent with the terms of routine travelthis Agreement), entertainment employees or agents earning compensation at an anticipated annual rate in excess of $50,000, or any bonus payment or arrangement made to or with any of such officers, employees, consultants or agents; or any increase in the compensation payable or to become payable to any of SDK's or Precision's or any of their respective Subsidiaries' other officers, employees, consultants or agents (other than normal annual raises for non-officers in the ordinary course of business consistent with past practice) or any bonus payment or arrangement made to or with any of such officers, employees or agents other than normal bonuses or compensation increases granted prior to the date of this Agreement as disclosed under Section 3.14 of the Precision Disclosure Schedule;
(viii) any material change with respect to the executive officers of SDK or Precision or any Subsidiary of SDK or Precision; or
(ix) any loss of one or more material customers of Precision or any Subsidiary of Precision, which, individually or in the aggregate, account for more than five percent (5%) of the consolidated revenues of Precision and its Subsidiaries as of the Base Balance Sheet Date excluding, however, any customer that ceases to do business with Precision as a direct or indirect result of the execution of this Agreement.
(b) Except as set forth under Section 3.14 of the Precision Disclosure Schedule, since the Base Balance Sheet Date neither SDK nor Precision, nor any of their respective Subsidiaries has:
(i) amended their certificates of incorporation, bylaws or any other business expensesorganizational document;
(ii) made any material payment or discharged any material Encumbrance or Liability;
(iii) incurred any material obligation or liability to any of their employees, officers, directors, stockholders or Affiliates, or any loans or advances made to any of its employees, officers, directors, stockholders or Affiliates, except normal compensation and reasonable travel related expense allowances payable to employees, officers or directors;
(iv) except as expressly permitted by this Agreement, declared, set aside or paid any dividend on, or made any other distribution in respect of, their capital stock, or made any changes in any rights, preferences, privileges or restrictions of any of their outstanding capital stock;
(v) effected or been a party to any transaction relating to a merger, consolidation, sale of all or substantially all of their assets, or similar transaction; or accepted or otherwise entered into any Acquisition Proposal (as defined in Section 5.3);
(gvi) executed, amended, relinquished, terminated or failed to renew any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any salematerial Contract, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property)any lease, transaction or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable legally binding commitment other than in the ordinary course of businesstheir business (nor has there been any written or oral indication or assertion by the other party thereto of its desire to so amend, relinquish, terminate or not renew any such Contract, lease transaction or legally binding commitment);
(kvii) any establishment, termination or amendment deferred the payment of any VGX Employee Planaccounts payable outside the ordinary course of business or provided any discount, accommodation or other concession made outside the ordinary course of business in order to accelerate or induce the collection of any receivable;
(lviii) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declarationincurred indebtedness for borrowed money, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or entered into any capital stock of its Subsidiaries;
(n) any purchase, redemption lease or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire guaranteed any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, indebtedness other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plantheir business, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations not in excess of $500,000 individually or $1,000,000 50,000 in the aggregate;; or
(six) entered into any cancellation by VGX other material transaction or taken any of its Subsidiaries of any indebtedness or waiver of any rights other material to VGX, except in action outside the ordinary course of business;
their business (t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable as disclosed in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any Section 3.14 of the foregoingPrecision Disclosure Schedule).
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as disclosed in the filed Buyer SEC Documents, from the date of VGX Balance Sheetthe most recent financial statements included in the filed Buyer SEC Documents to the date of this Agreement, VGX and each of its Subsidiaries the Buyer has conducted its business only in the ordinary course, and during such period there has not been:
(i) any change in the assets, liabilities, financial condition or operating results of the Buyer from that reflected in the Buyer SEC Documents, except changes in the ordinary course consistent with past practice andof business or changes that have not caused, since such datein the aggregate, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (loss, whether or not covered by insurance, that would have a Material Adverse Effect;
(iii) materially and adversely affecting any waiver or compromise by the Buyer of the material assetsa right or debt owed to it which would be reasonably likely to have a Material Adverse Effect;
(iv) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Buyer, except in the ordinary course of business or the satisfaction or discharge of which would not have a Material adverse Effect;
(v) any material portion of change to a material Contract by which the assets, of VGX Buyer or any of its Subsidiaries assets is bound or materially and adversely affecting subject which would be reasonably likely to have a Material Adverse Effect;
(vi) any resignation or termination of employment of any named executive officer (as defined by Regulation S-K promulgated by the business SEC) of VGX the Buyer;
(vii) any mortgage, pledge, granting of a security interest in, or lien, created by the Buyer, with respect to any of its Subsidiaries;
material properties or assets, except (ea) any commencement liens of Legal Proceedings against VGX taxes not yet due or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing payable (b) that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case arise in the ordinary course of business and consistent with past practicesdo not materially impair the Buyer’s ownership or use of such property or assets (c) that would not be reasonably likely to have a Material Adverse Effect;
(viii) any issuance of equity securities to any officer, director or affiliate (as defined in the Securities Act), except pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such Buyer shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personcompensation plans; or
(wix) any agreement arrangement or commitment by VGX or any of its Subsidiaries the buyer to do any of the foregoingthings described in this Section 4.1(g).
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as disclosed in the ordinary course consistent with past practice andCompany Disclosure Letter, since such dateJanuary 1, 2007: (i) with respect to VGX the Company and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case have conducted their respective businesses only in the ordinary course of business and consistent with past practices, practice; (ii) neither the Company nor any Subsidiary has incurred or pursuant to existing contractual commitments), including suffered a Material Adverse Change; (iii) there has not been any acquisition or sale by the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX Company or any Subsidiary of VGX;
any material property or assets thereof; (miv) neither the Company nor any Subsidiary has entered into or adopted any, or materially amended any, benefit plan; (v) no liability or obligation of any nature (whether absolute, accrued, contingent or otherwise) which has had or is reasonably likely to, individually or in the aggregate, have a Material Adverse Effect has been incurred; (vi) there has not been any event, circumstance or occurrence which is reasonably likely to give rise to a Material Adverse Effect; (vii) there has not been any change in the accounting practices used by the Company or its Subsidiaries, other than generally applicable changes in Laws or in U.S. GAAP; (viii) except as disclosed in the Company Disclosure Letter and except for ordinary course increases consistent with past practice, there has not been any increase in the salary, bonus, or other remuneration payable to any employees, officers, directors, contractors or consultants of any of the Company or its Subsidiaries; (ix) there has not been any redemption, repurchase or other acquisition of securities of the Company or its Subsidiaries, by the Company or its Subsidiaries, or any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities shares or property) in with respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock Company Common Shares or any securities convertible of the Subsidiaries except for ordinary course dividends or distributions consistent with past practice; (x) the Company and its Subsidiaries have not entered into capital stockor amended any material contract; (xi) there has not been any satisfaction or settlement or any claims or liabilities that were not reflected in the Company’s financial statements, other than (i) the issuance, delivery and/or sale settlement of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock liabilities incurred in the ordinary course of business under the VGX Option Plan, consistent with past practice none of which settlement of liabilities were material; and (iiixii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or neither the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or Company nor any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest have invested in any other Person; or
third party (wnon-bank sponsored) backed commercial paper including, without limitation, liquidity backed notes, extendible notes or medium term notes issued by any agreement by VGX or any of its Subsidiaries to do any of the foregoingsuch issuer.
Appears in 1 contract
Samples: Arrangement Agreement (Nevoro Inc.)
Absence of Certain Changes or Events. Since June 30, 1999, except (i) as disclosed in SECTION 4.06 OF THE DETECTIVE DISCLOSURE SCHEDULE, or (ii) as contemplated by this Agreement, the date businesses of VGX Balance Sheet, VGX Detective and each of its Subsidiaries has have been conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been any Material Adverse Effect. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except (i) as disclosed in SECTION 4.06 OF THE DETECTIVE DISCLOSURE SCHEDULE, or (ii) with respect to VGXI only, to the Knowledge of VGX, as contemplated by this Agreement there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveoccurred since June 30, 1999:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock the capital stock or share capital of Detective or any capital stock of its Subsidiaries;
(n) , or any purchasedirect or indirect redemption, redemption purchase or other acquisition by VGX Detective or any of its Subsidiaries of any of VGX Capital Stock such capital stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries share capital of, or commitment of it to issue any Option with respect to, Detective or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(qb) except for the execution, delivery and performance by Detective and Acquisition Sub of this Agreement and the transactions contemplated hereby, any amendment of the Certificate of Incorporation authorization, issuance, sale or By-Laws of VGX;
(r) any capital expenditure or execution of any lease other disposition by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX Detective or any of its Subsidiaries of any indebtedness shares of capital stock or waiver issued shares of, or any Option with respect to, Detective or any of its Subsidiaries, or any modification or amendment of any rights material to VGXright of any holder of any outstanding shares of capital stock or issued shares of, except in the ordinary course or any Option with respect to, Detective or any of businessits Subsidiaries;
(tc) any indebtedness incurred or guaranteed incurrences by VGX Detective or any of its Subsidiaries for borrowed money of indebtedness or any commitment voluntary purchase, cancellation, prepayment or complete or partial discharge in advance of a scheduled payment date with respect to, or waiver of any right of Detective or any of its Subsidiaries under, any indebtedness of or owing to borrow money entered into Detective or any of its Subsidiaries (in either case other than any indebtedness of Detective or any of its Subsidiaries owing to Detective or any of its Subsidiaries);
(d) any physical damage, destruction or other casualty loss (whether or not covered by VGX insurance) affecting any of the real or personal property or equipment of Detective or any of its Subsidiaries in excess an aggregate amount exceeding $100,000;
(e) any write-off or write-down of or any determination to write off or write down any of the assets and properties of Detective or any of its Subsidiaries in an aggregate amount exceeding $500,000100,000;
(f) any acquisition of any assets and properties of any Person or license or disposition of, or incurrence of a Lien (other than a Permitted Lien or any loans made Lien in aggregate amount less than $100,000) on, any assets and properties of Detective or agreed to be made any of its Subsidiaries, in each case, other than acquisitions, licenses or dispositions of products and services in the ordinary course of business of Detective or any of its Subsidiaries consistent with past practice or any Lien in aggregate amount less than $100,000);
(g) any commencement, termination or change by VGX Detective or any of its Subsidiaries of any line of business;
(h) any transaction by Detective or any of its Subsidiaries with any officer, director, stockholder, Affiliate or associate of Detective or any of its Subsidiaries, other than reasonable travel pursuant to any Contract in effect on June 30, 1999 and entertainment expense advances and trade accounts receivable in the ordinary course disclosed to Lynx pursuant to SECTION 4.16(a) OF THE DETECTIVE DISCLOSURE SCHEDULE or other than pursuant to any contract of businessemployment listed pursuant to SECTION 4.16(a) OF THE DETECTIVE DISCLOSURE SCHEDULE;
(ui) any commencement of Legal Proceedings by VGX change in accounting or any of its Subsidiaries;
(v) any acquisition Tax principles, methods or disposition of any equity interest in any other Personpractices; or
(wi) any agreement granting by VGX Detective or any of its Subsidiaries to do any current or former director, executive officer or other employee of Detective or any of its Subsidiaries of any increase in compensation, bonus or other benefits, except for normal increases in cash compensation in the foregoingordinary course of business consistent with past practice or as was required under any employment agreements in effect as of the date of the most recent financial statements included in the SEC Documents, (ii) any granting by Detective or any of its Subsidiaries to any such current or former director, executive officer or employee of any increase in severance or termination pay, (iii) any entry by Detective or any of its Subsidiaries into, or any amendments of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or employee or (iv) any amendment to, or modification of, any Option or the benefits under any Detective Plan.
Appears in 1 contract
Samples: Merger Agreement (Pearson Inc)
Absence of Certain Changes or Events. Since August 31, 2006, other than as set forth in the date of VGX Balance SheetHGF Disclosure Schedule, VGX and each of its Subsidiaries HGF has conducted operated its business in the ordinary course consistent with its past practice practices, and, other than as set forth in the HGF Disclosure Schedule, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI date there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveHGF any:
(a) any Material Adverse Effect on VGX HGF or any change, event, circumstance, condition or effect that would reasonably be expected to result in a Material Adverse Effect on any of its SubsidiariesHGF;
(b) any resignation amendment or termination by VGX change in its Certificate of Limited Partnership or any Agreement of its Subsidiaries of any executive officer or directorLimited Partnership;
(c) any written notice of any actual incurrence, creation or threatened termination by assumption of: (i) any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or Encumbrance on any of its Subsidiariesassets or properties (other than Permitted Encumbrances), (ii) any material liability for borrowed money or (iii) any material liability as a guarantor or surety with respect to the obligations of others;
(d) any damage, destruction payment or loss (whether or not covered by insurance) materially and adversely affecting any discharge of the material assets, or any material portion of the assets, of VGX or Encumbrance on any of its Subsidiaries assets or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiariesproperties, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business, or payment or discharge of any of its liabilities, other than in the ordinary course of business, after the date of the Most Recent HGF Balance Sheet;
(e) material damage, destruction or loss of any material property or material asset, whether or not covered by insurance;
(f) distribution made in respect of the HGF Partnership Interests (other than the distribution contemplated under Section 6.2(i)), any direct or indirect purchase or other acquisition of any HGF Partnership Interest or any change in any rights, preferences, privileges or restrictions of any HGF Partnership Interest;
(g) material change or increase in the compensation payable or to become payable to any of its officers, managers, employees, partners, agents, consultants or independent contractors, or in any bonus, commission, expense reimbursement, pension, severance, retention, or insurance plan of HGF or in any other benefit payment or arrangement made to or with any of such officers, managers, employees, partners, agents, consultants or independent contractors; or material modification of any “nonqualified deferred compensation plan” as defined in Code Section 409A;
(h) material change with respect to its management, supervisory or other key personnel of HGF; termination of employment of a material number of employees of HGF; termination of the engagement of a material number of agents, consultants, or independent contractors of HGF; or any union organizing activity at any HGF facility;
(i) liability incurred by it to any of its officers, managers, employees, partners, agents, consultants, or independent contractors except for normal and customary compensation and expense allowances in the ordinary course of its business consistent with its past practices;
(j) loan, advance (other than ordinary advances for work-related expenses) or capital contribution to, or any investment in, any of its officers, managers or partners or any firm or business enterprise in which any such person had a direct or indirect material interest at the time of such loan, advance, capital contribution or investment;
(k) any establishmententering into, amendment of, relinquishment, termination or amendment nonrenewal of any VGX Employee PlanHGF Material Contract other than in the ordinary course of its business consistent with its past practices, default by HGF under any such Material Contract; or written assertion by the other party thereto of any material problems with its services or performance under such Material Contract or such other party’s desire to so amend in any material respect, relinquish, terminate or not renew any such Material Contract;
(l) entering into by it of any material increase Contract that by its terms requires or contemplates a current and/or future financial commitment, expense or obligation on its part that involves any individual payment in excess of severance $10,000 or termination pay to aggregate payments in excess of $120,000 in any employee of VGX or any Subsidiary of VGXtwelve month period;
(m) making or entering into any declarationContract with respect to any acquisition, setting aside sale or payment transfer of any dividend on, or other distribution (whether material asset of HGF that is not entered into in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock the ordinary course of its Subsidiariesbusiness consistent with past practices;
(n) material change in accounting policies, methods or practices (including any purchase, redemption change in depreciation or other acquisition by VGX amortization policies or rates or revenue recognition policies); change in Tax elections or methods; or revaluation of any of its Subsidiaries assets (other than in connection with or as a result of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementstransactions contemplated by this Agreement);
(o) deferral of the payment of any issuance or reservation for issuance by VGX material accounts payable, or any of its Subsidiaries ofmaterial discount, or commitment of it to issue or reserve for issuance, or the pledge accommodation or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock concession made in order to accelerate or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it induce the collection of any subscriptionsreceivable, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, in each case other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice;
(p) any splitpayment, combination directly or reclassification indirectly, of any of VGX Capital Stock material liability before the same became due and payable in accordance with its terms or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except otherwise than in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personbusiness consistent with past practice; or
(wq) announcement of, any agreement negotiation by VGX or any of its Subsidiaries entry into any Contract to do any of the foregoingthings described in the preceding clauses (a) through (p) (other than negotiations and agreements with ABE and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Partnership Interest and Stock Purchase Agreement (Advanced BioEnergy, LLC)
Absence of Certain Changes or Events. Since Except as disclosed in Schedule 2.7 of the Seller Parties Disclosure Letter, from the date of VGX the Most Recent Balance SheetSheet to the date hereof, VGX the Partnership and each of its the Partnership Subsidiaries has have conducted its their business only in the ordinary course consistent with past practice and, practices (including the acquisition of properties and issuance of securities) and since such date, (i) the date of the Most Recent Balance Sheet with respect to VGX Section 2.7(d) below and its Subsidiaries other than VGXI from the date of the Most Recent Balance Sheet to the date hereof with respect to Sections 2.7(a) —(c) and 2.7(e)-(p) below there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Partnership Material Adverse Effect on VGX on Effect, nor has there been any events, occurrences or circumstances that, individually or in the aggregate, with the passage of its Subsidiariestime, would reasonably be expected to result in a Partnership Material Adverse Effect;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customerauthorization, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant with respect to the terms of their pre-existing stock option or purchase agreementsPartnership Interests prior to the date hereof;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(pc) any split, combination or reclassification of the Partnership Interests or any of VGX Capital Stock ownership or voting interest in the Partnership or any Partnership Subsidiary or any issuance or the capital stock authorization of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for for, or giving the right to acquire by exchange or exercise, an ownership or voting interest in the Partnership or any VGX Capital Stock or the capital stock of any of its SubsidiariesPartnership Subsidiary;
(qd) any damage to, destruction or loss of any asset or property of the Partnership or the Partnership Subsidiaries in excess of $50,000, whether or not covered by insurance;
(e) any material change in accounting methods, principles or practices by the Partnership or any Partnership Subsidiary, except insofar as may have been required by a change in GAAP consistently applied on a fair value basis;
(f) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX employment, consulting, severance, retention or any other agreement between the Partnership and any officer or director of its Subsidiaries of any indebtedness or waiver of any rights material to VGXthe Partnership, except for bonus awards and increases in salaries made in the ordinary course of businessbusiness consistent with past practices;
(tg) any indebtedness incurred waiver, release or guaranteed by VGX cancellation of any material claims against third parties or material debts owing to it, or any rights which have any material value,
(h) any material transaction with affiliates of the Partnership or any Partnership Subsidiary;
(i) any transfer, acquisition, or material encumbrance of any real estate or other material assets;
(j) waiver or extension of the statute of limitations in respect of any material Taxes; change in any annual Tax accounting period; adoption or change in any material method of Tax accounting; new or amended Tax allocation agreement, Tax sharing agreement or closing agreement relating to any Tax;
(k) any settlement or compromise of any material suits or claims of liability against the Partnership, any Partnership Subsidiary or any of its Subsidiaries for borrowed money their respective directors, officers, managers, partners, trustees, employees or agents in their capacity as such;
(l) any commitment termination, breach or material modification of any Partnership Space Lease or material Contract;
(m) any amendment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000the Existing Partnership Agreement, or any loans made or agreed amendment to be made by VGX or the organizational documents of any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessPartnership Subsidiary;
(un) any commencement incurrence or guaranty of Legal Proceedings a material amount of indebtedness or other liability by VGX the Partnership or any Partnership Subsidiary (other than the guaranty by the Partnership or a Partnership Subsidiary of its Subsidiariesindebtedness of the Partnership or a Partnership Subsidiary);
(vo) any acquisition or disposition adoption of any equity interest plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any other Personprovisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; or
(wp) any agreement by VGX Contract to which the Partnership or any of its Subsidiaries Partnership Subsidiary is a party to do any of the foregoing.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Liberty Property Limited Partnership)
Absence of Certain Changes or Events. Since Except as disclosed in the Webdigs SEC Documents or in the Webdigs Disclosure Schedule, from the date of VGX Balance Sheetthe most recent audited financial statements included in the Webdigs SEC Documents to the date of this Agreement, VGX and each of its Subsidiaries Webdigs has conducted its business only in the ordinary course consistent with past practice andcourse, since and during such date, (i) with respect to VGX and its Subsidiaries other than VGXI period there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any change in the assets, liabilities, financial condition or operating results of Webdigs from that reflected in the Webidgs SEC Documents, except changes in the ordinary course of business that have not caused, in the aggregate, a Webdigs Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation damage, destruction or termination loss, whether or not covered by VGX or any of its Subsidiaries of any executive officer or directorinsurance, that would have a Webdigs Material Adverse Effect;
(c) any written notice waiver or compromise by Webdigs of any actual a valuable right or threatened termination by any of a material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesdebt owed to it;
(d) any damagesatisfaction or discharge of any lien, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsclaim, or encumbrance or payment of any material portion obligation by Webdigs, except in the ordinary course of business and the assets, satisfaction or discharge of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiarieswhich would not have a Webdigs Material Adverse Effect;
(e) any commencement of Legal Proceedings against VGX material change to a material Contract by which Webdigs or any of its Subsidiaries, and no Person has notified VGX assets is bound or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingsubject;
(f) any material increase change in the any compensation payable arrangement or agreement with any employee, officer, director or stockholder;
(g) any resignation or termination of employment of any officer of Webdigs;
(h) any mortgage, pledge, transfer of a security interest in, or lien, created by Webdigs, with respect to any officer of its material properties or director of VGX (other than increases in each case in connection with general performance reviews assets, except liens for taxes not yet due or payable and annual salary increases in each case liens that arise in the ordinary course of business and consistent with past practices, do not materially impair Webdigs’ ownership or pursuant to existing contractual commitments), including the making use of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties property or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change loans or guarantees made by VGX Webdigs to or for the benefit of its employees, officers or directors, or any members of its Subsidiaries in its accounting methodstheir immediate families, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than travel advances and other advances made in the ordinary course of its business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mj) any declaration, setting aside or payment or other distribution in respect of any dividend onof the Webdigs’ capital stock, or any direct or indirect redemption, purchase, or other distribution (whether in cash, stock, equity securities or property) in respect of, acquisition of any of VGX Capital Stock or any capital such stock of its Subsidiariesby Webdigs;
(nk) any purchase, redemption alteration of Webdigs’ method of accounting or other acquisition by VGX or any the identity of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsauditors;
(ol) any issuance of equity securities to any officer, director or reservation for issuance by VGX or any of its Subsidiaries ofaffiliate, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock except pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital existing Webdigs stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personoption plans; or
(wm) any agreement arrangement or commitment by VGX or any of its Subsidiaries Webdigs to do any of the foregoingthings described in this Section 2.08.
Appears in 1 contract
Samples: Share Exchange Agreement (Next 1 Interactive, Inc.)
Absence of Certain Changes or Events. Since October 1, 2006, except as disclosed in Section 4.6 of the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXSeller’s Disclosure Schedule, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveno:
(a) any Material Adverse Effect on VGX on Change with respect to the Division or the Assets;
(i) except for normal periodic increases in the ordinary course of business consistent with past practice, increase in the compensation payable or to become payable by Seller to any of its Subsidiaries;
Transferred Employees, (bii) any resignation bonus, incentive compensation, severance, deferred compensation, service award or termination by VGX other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of any of its Subsidiaries the Transferred Employees, except in the ordinary course of business consistent with past practices, (iii) employee welfare, pension, insurance, retirement, profit-sharing or similar payment or arrangement made or agreed to by Seller for any executive officer of the Transferred Employees except pursuant to the existing Employee Plans described in Section 4.17 of the Seller’s Disclosure Schedule or director(iv) new employment or severance agreements with Transferred Employees to which Seller is a party;
(c) any written notice addition to or modification of any actual the Employee Plans related to the Transferred Employees other than (i) contributions made in accordance with the normal practices of Seller or threatened termination by any material customer(ii) the extension of coverage to Transferred Employees who became eligible after October 1, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries2006;
(d) sale, assignment or transfer of any assets of Seller related to the Division other than in the ordinary course of business consistent with prior practices, or the imposition of any Encumbrance thereon;
(e) cancellation of any Indebtedness or waiver of any rights of substantial value to Seller related to the Division or the Assets;
(f) cancellation, termination or material amendment of any Material Contract, material License or other instrument material to the Division that adversely affects the Business;
(g) capital expenditure or any incurring of liability therefor by Seller related to the Division or the Assets, other than capital expenditures involving payments that do not, individually or in the aggregate, exceed $20,000;
(h) failure to operate the Business in the ordinary course so as to use reasonable efforts to preserve the Business intact, to keep available the services of the Transferred Employees, and to preserve the goodwill of Seller’s suppliers, customers and others having business relations with Seller.
(i) change in Tax or accounting methods, principles or practices by Seller or the making of any Tax election or the change of an existing election all, to the extent effecting the Division;
(j) revaluation by Seller of any of its respective assets or properties related to the Division, including without limitation, writing off notes or accounts receivable;
(k) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee PlanDivision;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition Indebtedness incurred by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant Seller relating to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries Business for borrowed money or any commitment to borrow money incur Indebtedness entered into by VGX or any of its Subsidiaries in excess of $500,000Seller with respect to the Division, or any loans made or agreed to be made by VGX or any of its Subsidiaries, Seller with respect to the Division (other than reasonable travel and entertainment expense advances and trade accounts receivable the advancement of expenses to Personnel of Seller in the ordinary course of business);
(um) execution, termination, or material amendment of any commencement lease for personal property in the relation of Legal Proceedings by VGX or any the Division involving annual payments in excess of its Subsidiaries$20,000;
(vn) material change in collection policies or payment terms applicable to any acquisition of the suppliers or disposition customers of any equity interest in any other PersonSeller related to the Business;
(o) action which, if it had been taken or had occurred after execution of this Agreement, would have required the consent of Buyer hereunder; or
(wp) any agreement by VGX or any of its Subsidiaries Seller to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as contemplated by this Agreement, during the period from the Latest Balance Sheet Date to the date of VGX Balance Sheetthis Agreement, VGX the Target Companies and each of its Subsidiaries has conducted its business the Subsidiary have operated their businesses in all respects in the ordinary course of business, consistent with past practice andpractice. Since the Latest Balance Sheet Date there has been no: (a) change in the Target Companies and the Subsidiary, since such datetaken as a whole, that has had, or could reasonably be expected to have, a Material Adverse Effect; (ib) split, combination or reclassification of any shares of their capital stock; (c) redemption, purchase or acquisition of their capital stock; (d) change in their cash management practices and its policies, practices and procedures with respect to VGX collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and its Subsidiaries acceptance of customer deposits; (e) entry into any agreement that would constitute a Material Contract, other than VGXI there has not been in the ordinary course of business; (f) transfer, assignment or (ii) grant of any license or sublicense of any rights under or with respect to VGXI only, to any Intellectual Property owned by either Target Company or the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
Subsidiary; (ag) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting to their property; (h) acceleration, termination, modification to or cancellation of any Material Contract; (i) material capital expenditure, other than as contemplated by any business plan or forecast; (j) imposition of any Encumbrance upon any of the their material properties, capital stock or assets, tangible or intangible; (k) loan to (or forgiveness of any loan to), or entry into any other material portion of the assetstransaction with, of VGX or any of its Subsidiaries stockholders or materially current or former directors, officers and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiariesemployees, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase other than in the ordinary course of business; (l) entry into a new line of business or abandonment or discontinuance of existing lines of business; (m) action by the Target Companies or the Subsidiary to make, change or rescind any Tax election, amend any Tax Return, adopt or change any accounting method or period in respect of Taxes, enter into any Tax-sharing, allocation, compensation payable or like agreement, settle any claim or assessment in respect of Taxes, request any Tax ruling or consent to any officer extension or director waiver of VGX the limitation period applicable to any claim or assessment in respect of Taxes or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Purchaser in respect of any taxable period that ends after the Closing Date, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax; (n) incur, assume or guarantee any indebtedness for borrowed money, other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, practice or pursuant to existing contractual commitments)that certain Loan and Security Agreement, including dated as of February 26, 2011, between RPM and TD Bank, N.A.; (o) issue, sell, deliver, redeem or purchase any of its equity securities, or grant or enter into any options, warrants, rights, agreements or commitments with respect to the making issuance of its securities, or amend any terms of any loan such equity securities or agreements; (p) increase the rate of compensation or benefits of, or pay, agree to such person pay or accelerate any benefit (other than advancement of routine travelincluding severance pay) to, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) present or former members, managers, directors, officers or employees, except as may be required by any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property)existing Company Benefit Plan, or any encumbrance (excluding Permitted Liens) of any properties agreement, policy, program or assetsarrangement, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses to employees in the ordinary course of VGX's business of such Target Company or the business of Subsidiary; (q) enter into, adopt, terminate or amend any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case Company Benefit Plan, employment or $1,000,000 in the aggregate;
(i) any material change by VGX severance agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefit Plan if it were in existence as of its Subsidiaries in its accounting methodsthe date of this Agreement; (r) suffered any strike, principles work stoppage, slow-down or practicesother labor disturbance, except as required by concurrent changes in US GAAP;
(j) or hired, terminated, promoted or demoted any material revaluation by VGX employee, consultant, independent contractor, executive officer, director or any of its Subsidiaries of any of its assetsother service provider, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
; (ks) any establishmentsell, termination lease, transfer or amendment otherwise dispose of any VGX Employee Plan;
(l) any material increase of severance capital assets, real, personal or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend onmixed, or other distribution (mortgage or encumber any properties or assets, whether in cash, stock, equity securities real or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockpersonal, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under or (ii) a sale, transfer or disposition to a third party for fair market value; (t) acquire or agree to acquire by merging or consolidating with, or by purchasing the VGX Option Planstock or a substantial portion of the assets of, and (iii) issuances upon exercise of VGX Warrants or by any other manner, any business or any corporation, partnership, association or other rights disclosed pursuant business organization or division thereof or otherwise acquire or agree to Section 2.2;
acquire any assets, other than (pi) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
business or (tii) in connection with the purchase of capital equipment; (u) effectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act) affecting in whole or in part any indebtedness incurred “site of employment” (as such term is defined under the WARN Act) of the Target Companies or guaranteed by VGX or the Subsidiary; (v) amend its Fundamental Documents; (w) change any of its Subsidiaries for borrowed money accounting principles, methods or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, practices other than reasonable travel and entertainment expense advances and trade accounts receivable as required by GAAP; or (x) agree, whether in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX writing or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Securities Purchase Agreement (ExlService Holdings, Inc.)
Absence of Certain Changes or Events. Since Except as disclosed on Schedule 3.21, since January 1, 2005, the date of VGX Balance SheetAcquired Companies have conducted their business, VGX and each of its Subsidiaries has conducted its business including the Business, only in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been occurred any event or (ii) with respect condition which has or may reasonably be expected to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any have a Material Adverse Effect on VGX the Acquired Companies. Without limiting the generality of the foregoing, except for those matters listed in Schedule 3.21 attached, the Acquired Companies have 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 business consistent with past practice or those reflected on the Financial Statements, (b) discharged or satisfied any Lien 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 any of the Company’s properties or assets to any Lien, other than a Permitted Lien (as defined below), (d) sold, transferred, licensed or otherwise disposed of any of the Company’s properties or assets other than in the ordinary course of business consistent with past practice, (e) increased the compensation payable or to become payable by it to any of its Subsidiaries;
(b) directors, officers, salaried employees or agents, or made any resignation bonus, percentage of compensation or termination by VGX other like benefit accruing to or any of its Subsidiaries for the credit of any executive officer such directors, officers, employees, consultants or director;
agents of the Company, except as provided by a binding written agreement made and entered into prior to the date hereof, a true copy of which has been delivered to Parent, (cf) terminated or received any written notice of any actual or threatened termination by of any material customercontract, supplierlicense, partnerlease, licensortrademark, licensee patent, patent application, copyright or trade name protection or other third party having business relations with VGX or any of its Subsidiaries;
agreement, (dg) suffered any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any Acquired Companies’ properties or assets, tangible (h) suffered any taking or intangible (including, without limitation, Intellectual Property), seizure of all or any encumbrance part of the Acquired Companies’ properties or assets by condemnation or eminent domain, (excluding Permitted Liensi) experienced any material change in its relations with its vendors, suppliers, lenders, dealers, distributors, customers, employees, consultants or agents, (j) acquired any capital stock or other securities of any properties corporation or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 interest in any one case business enterprise or otherwise made any loan or advance to or investment in any person or entity, (k) made any capital expenditures or capital additions exceeding Fifty Thousand ($1,000,000 50,000) Dollars singly or One Hundred Thousand ($100,000) Dollars in the aggregate;
, (i1) 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 business operations involving a claim in excess of Ten Thousand ($10,000) Dollars, (m) made any purchase commitment in excess of normal ordinary and usual requirements or made any material change by VGX or any of its Subsidiaries in its accounting methodsselling, principles pricing or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable personnel practices other than in the ordinary course of business;
(k) any establishmentbusiness consistent with past practice, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) made any purchasechange in accounting principles or methods or in the manner of keeping books, redemption accounts and records of the Acquired Company which is, or other acquisition may be, inconsistent with the principles or methodology by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any optionswhich the Financial Statements have been prepared, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.contract,
Appears in 1 contract
Samples: Merger Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as disclosed in the ordinary course consistent with past practice andSchedule 6.10, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXBase Balance Sheet Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect on VGX on any of its Subsidiariesactual or threatened material adverse change;
(b) any resignation change in accounting methods, principles or termination practices by VGX Nextera or any Subsidiary of its Subsidiaries of any executive officer Nextera affecting Nextera's assets, Liabilities or directorbusiness;
(c) revaluation by Nextera or any written notice Subsidiary of Nextera of any actual of their assets, including without limitation writing down the value of inventory or threatened termination by any material customer, supplier, partner, licensor, licensee writing off notes or other third party having business relations with VGX or any of its Subsidiariesaccounts receivable;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting which has had or will have a material adverse affect;
(e) cancellation of any indebtedness or waiver or release of any right or claim of Nextera or any Subsidiary of Nextera relating to its activities or properties which had or will have a material adverse effect;
(f) declaration, setting aside, or payment of dividends or distributions by Nextera or any Subsidiary of Nextera in respect of its equity securities or any redemption, purchase or other acquisition of any of the material assets, securities of Nextera or any Subsidiary of Nextera;
(g) adverse change in employee relations which has or is reasonably likely to have a material portion adverse effect on the productivity, the financial condition, results of the assets, operations of VGX or any of Nextera and its Subsidiaries on a consolidated basis or materially the relationships between the employees of Nextera and adversely affecting its Subsidiaries and the business management of VGX or any of Nextera and its Subsidiaries;
(eh) payment, discharge or satisfaction of any commencement Liabilities of Legal Proceedings against VGX Nextera or any Subsidiary of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (Nextera other than increases in each case in connection with general performance reviews and annual salary increases in each case the payment, discharge or satisfaction in the ordinary course of business and consistent with past practices, of Liabilities set forth or pursuant to existing contractual commitments), including reserved for on the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment Nextera Balance Sheet or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than incurred in the ordinary course of business;
(ki) failure to pay or satisfy when due any establishment, termination or amendment Liability of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX Nextera or any Subsidiary of VGXNextera, except where the failure would not have a material adverse effect on Nextera and its Subsidiaries on a consolidated basis;
(mj) any declaration, setting aside disposition or payment lapsing of any dividend onProprietary Rights, or other distribution (whether in cash, stock, equity securities any disposition or property) in respect of, disclosure to any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries person of any of VGX Capital Stock Proprietary Rights of Nextera or any other securities Subsidiary of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms Nextera not therefore a matter of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, public knowledge other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights as would not have a material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personadverse effect; or
(wk) any agreement by VGX or any of its Subsidiaries Nextera to do any of the foregoingthings described in the preceding clauses (a) through (j) other than as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetSheet Date, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXexcept as set forth on Schedule 4.4, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any actual or threatened Material Adverse Effect on VGX on any Change in the financial condition, working capital, Purchased Assets, Assumed Liabilities, reserves, revenues, income, or earnings of its Subsidiariesthe Business;
(b) any resignation change in Tax or termination accounting methods, principles or practices by VGX Seller affecting the Purchased Assets, Assumed Liabilities or any of its Subsidiaries of any executive officer or directorthe Business;
(c) any written notice material revaluation by Seller of any actual of the Purchased Assets, including without limitation writing down the value of inventory or threatened termination by any material customer, supplier, partner, licensor, licensee writing off notes or other third party having business relations with VGX or any of its Subsidiariesaccounts receivable;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, Purchased Assets taken as a whole or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesBusiness;
(e) cancellation of any commencement indebtedness or waiver or release of Legal Proceedings against VGX any right or any claim of its Subsidiaries, and no Person has notified VGX Seller relating to the Purchased Assets or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence Business which had or will have a Legal ProceedingMaterial Adverse Effect on the Purchased Assets or the Business;
(f) any material other than in the ordinary course of Business, increase in the rate of compensation payable or to become payable to any officer or director other employee of VGX Seller involved in the Business or any consultant, Representative or agent of Seller involved in the Business, including without limitation the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, or the addition to, modification of, or contribution to any Employee Plan, arrangement, or practice described in the Disclosure Schedule;
(other than increases g) adverse change in each case employee relations which has or is reasonably likely to have a Material Adverse Effect on the Business or the Purchased Assets or the relationships between the employees of Seller and the management of Seller involved in connection with general performance reviews and annual salary increases in each case the Business;
(h) amendment, cancellation or termination of any material Contract, Lease, or Permit relating to the Purchased Assets or the Business or entry into any Contract, Lease, or Permit which is not in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments)business, including the making of without limitation any loan to such person (other than advancement of routine travel, entertainment and other business expenses)employment or consulting agreements;
(gi) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any salemortgage, lease, license, assignment pledge or exclusive license other Encumbrance of any properties or assetsPurchased Assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses except purchase money liens arising in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPbusiness;
(j) any material revaluation by VGX sale, assignment or any of its Subsidiaries transfer of any of its assetsthe Purchased Assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishmentincurrence by Seller of Liabilities relating to the Business, termination or amendment except Liabilities incurred in the ordinary course of any VGX Employee Planthe Business;
(l) increase or change in any material increase assumptions underlying, or methods of severance calculating, any doubtful account contingency or termination pay to any employee of VGX or any Subsidiary of VGXother reserves for the Business;
(m) any declarationpayment, setting aside discharge or payment satisfaction of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any Liabilities of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant Seller relating to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, Business other than (i) the issuancepayment, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock discharge or satisfaction in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise Business of VGX Warrants Liabilities set forth or other rights disclosed pursuant to Section 2.2;
(p) any split, combination reserved for on the Financial Statements or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except incurred in the ordinary course of business;
(tn) any indebtedness incurred or guaranteed capital expenditure by VGX or any of its Subsidiaries Seller for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries the Business in excess of $500,00010,000, or the incurring of any loans made obligation by Seller to make any such capital expenditure;
(o) failure to pay or agreed satisfy when due any Liability of Seller relating to be made by VGX the Business, except where the failure would not have a Material Adverse Effect on the Purchased Assets or the Business;
(p) disposition or lapsing of any material Proprietary Rights or any disposition or disclosure to any person of its Subsidiaries, any material Proprietary Rights not theretofore a matter of public knowledge;
(q) existence of any other event or condition which in any one case or in the aggregate has or might reasonably be expected to have a Material Adverse Effect on the Business or the Purchased Assets;
(r) other than reasonable travel and entertainment expense advances and trade accounts receivable as set forth in Schedule 4.4(r), payment not in the ordinary course of businessBusiness from Seller to or on behalf of Seller or any officer, director, stockholder or employee of Seller, pursuant to any agreement or otherwise between Seller or any such person or otherwise;
(us) any commencement agreement, condition, action or omission which would be proscribed by (or require consent under) Section 6.5 had it existed, occurred or arisen after the date of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personthis Agreement; or
(wt) any agreement by VGX or any of its Subsidiaries Seller to do any of the foregoingthings described in the preceding clauses (a) through (s) other than as expressly provided for herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Seracare Life Sciences Inc)
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as set forth in the ordinary course consistent with past practice andAgribrands Securities Filings, since such dateAugust 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1999, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
been: (i) any material change event, occurrence, fact, condition, change, development or effect ("Event") (except for those Events caused by VGX (x) ----- conditions affecting national, regional or any of its Subsidiaries world economies such as currency fluctuations (but excluding extraordinary disruptions in its accounting methodsregional or world economies or markets or US/foreign currency exchange ratios involving multiple countries), principles or practices, except as required by concurrent changes in US GAAP;
(jy) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down conditions affecting the value of capitalized inventory or writing off notes or accounts receivable other than animal feed industry in the ordinary course regions in which Agribrands operates, or (z) the pendency or announcement of business;
this Agreement, or the transactions contemplated hereby) that has had or would reasonably be expected to have an Agribrands Material Adverse Effect; (k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mii) any declaration, payment or setting aside or for payment of any dividend on, (except to Agribrands or an Agribrands Subsidiary wholly owned by Agribrands) or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchaseredemption, redemption purchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock Agribrands or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and Agribrands Subsidiary; (iii) issuances upon exercise any return of VGX Warrants any capital or other rights disclosed pursuant distribution of assets to Section 2.2;
shareholders of Agribrands or any Agribrands Subsidiary (pexcept to Agribrands or an Agribrands Subsidiary wholly owned by Agribrands); (iv) any splitacquisition (by merger, combination consolidation, acquisition of stock or reclassification assets or otherwise) of any of VGX Capital Stock person or the capital stock of any of its Subsidiaries' business; or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition other action or disposition of any equity interest in any other Person; or
(w) any agreement or undertaking by VGX Agribrands or any Agribrands Subsidiary that, if taken or done on or after the date hereof without Ralcorp's consent, would result in a breach of its Subsidiaries Section 6.1, below, and that has had or would reasonably be expected to do any of the foregoinghave an Agribrands Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ralcorp Holdings Inc /Mo)
Absence of Certain Changes or Events. Since the date of VGX Balance SheetSheet Date, VGX and each of its Subsidiaries (x) the Business has conducted its business been operated in the ordinary course of business, consistent with past practice and, since such datepractice, (iy) there has been no Material Adverse Change in or with respect to VGX the Business or the Lottery Assets and its Subsidiaries other than VGXI (z) there has not been been, to the knowledge of Seller, no threatened Material Adverse Change in or (ii) with respect to VGXI onlythe Business or the Lottery Assets. Without limiting the generality of the foregoing, to since the Knowledge of VGXBalance Sheet Date, there Seller has not been nor has VGX been asked to act in any management made or stockholder capacity to allow for or approvesuffered any:
(a) any Material Adverse Effect on VGX on (i) sale, assignment, lease or transfer of any of its Subsidiariesthe Lottery Assets, material singly or in the aggregate, other than in the ordinary course of Seller's business, consistent with past practice, to persons who are not Affiliates of Seller for fair consideration or (ii) mortgage, pledge or other Encumbrance of any Lottery Asset, except Permitted Encumbrances;
(b) cancellation, termination, amendment, modification or waiver of any resignation Contract to which Seller is a party and which relates to the Lottery Assets or termination the Business, or by VGX which the Business or any of its Subsidiaries the Lottery Assets are bound (excluding open purchase orders, or groups of any executive officer related open purchase orders, of less than Ten Thousand Dollars ($10,000), singly or directorin the aggregate), which cancellation, termination, amendment, modification or waiver has resulted, or is reasonably likely to result, in a Material Adverse Effect on Seller, the Business or the Lottery Assets;
(c) any written notice of any actual (i) increase in the compensation payable or threatened termination to become payable by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or Seller to any of its Subsidiariesdirectors or officers which would have a Material Adverse Effect on the Lottery Assets or the Business, (ii) increase in the base compensation payable or to become payable to any Personnel of Seller (other than directors or officers) which would have a Material Adverse Effect on the Lottery Assets or the Business, (iii) increase in the sales commission rate payable or to become payable to any Personnel of Seller (other than directors or officers) relating to the Business, (iv) loan, bonus, incentive compensation (excluding sales commissions), service award or other like benefit granted, made or accrued, contingently or otherwise, to or for the benefit of any of the Personnel which would have a Material Adverse Effect on the Lottery Assets or the Business, except pursuant to the existing plans and arrangements described in SCHEDULE 4.19, (v) employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by Seller to any of the Personnel except pursuant to the existing plans and arrangements described in SCHEDULE 4.19, (vi) new employment or consulting agreement to which Seller is a party or any written or oral termination, cancellation or amendment thereof (except with respect to employees at will without a written agreement) which would have a Material Adverse Effect on the Lottery Assets or the Business, (vii) collective bargaining agreement or any termination or amendment thereof or (viii) with respect to any stockholder or other Affiliate of Seller, any payment or distribution or other like benefit granted, made or accrued, contingently or otherwise which would have a Material Adverse Effect on the Lottery Assets or the Business;
(d) addition to or modification of the employee benefit plans, arrangements or practices described in SCHEDULE 4.19 affecting any of the Personnel other than (i) contributions made in the ordinary course of business, consistent with past practice, or (ii) the extension of coverage to any of the Personnel who became eligible after the Balance Sheet Date;
(e) capital expenditure or commitment to make any capital expenditure or execution of any Lease or any incurring of Liability therefor by Seller relating to the Business or the Lottery Assets which would have a Material Adverse Effect on the Lottery Assets or the Business;
(f) failure of Seller to carry on the Business diligently in the ordinary course and to use its reasonable best efforts to preserve the Business intact, to keep available the services of its Personnel, and to preserve the goodwill of its suppliers, customers, distributors and others having business relations with it, including, without limitation, any failure of Seller to pay such suppliers or others in a timely fashion;
(g) change in accounting methods, principles or practices by Seller, including, without limitation, any change in the application or interpretation of GAAP which would have a Material Adverse Effect on the Lottery Assets or the Business;
(h) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsthat has had, or any material portion of may reasonably be expected to have, an adverse effect on the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business Business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than Lottery Assets that exceeds Ten Thousand Dollars ($500,000 10,000) in any one case or $1,000,000 in the aggregateinstance;
(i) declaration, setting aside for payment or payment of dividends or distributions in respect of any material change by VGX equity security of Seller that involves or relates to the Lottery Assets or any redemption, purchase or other acquisition of its Subsidiaries in its accounting methodsany of Seller's equity securities that involves or relates to the Lottery Assets, principles or practicesany bonus, except as required by concurrent changes in US GAAPfee or other payment or any other transfer of Lottery Assets to or on behalf of any stockholder, any Affiliate of Seller or any Affiliate of any stockholder, including, but not limited to, any payment of principal of or interest on any debt owed to any such stockholder or Affiliate that involves or relates to the Lottery Assets;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or entry into any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000money, or any loans made or agreed to be made by VGX Seller, or indebtedness guaranteed by Seller that involves or relates to the Lottery Assets;
(k) change in or amendment of Seller's Articles of Incorporation or Bylaws in a manner that affects the Lottery Assets or the Business, or adversely affects Seller's ability to transfer the Lottery Assets as required by this Agreement;
(l) acquisition (by merger, consolidation, acquisition of assets, stock or other securities or otherwise) of, capital investment in, loan or advance to, agreement to loan or advance to or guarantee of indebtedness for borrowed money of (i) any person or (ii) any portion of the assets of any person that constitutes a division or operating unit of such person in a manner that affects the Lottery Assets or the Business, or adversely affects Seller's ability to transfer the Lottery Assets as required by this Agreement;
(m) revaluation of any of the Lottery Assets, including, without limitation, any writeoff of notes or accounts receivable or any of its Subsidiariesincrease in any reserve, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business, consistent with past practice, but in no event exceeding Ten Thousand Dollars ($10,000) individually or Twenty-Five Thousand Dollars ($25,000) in the aggregate (such amounts to be calculated without netting any decrease);
(un) any commencement of Legal Proceedings by VGX cancellation, waiver or any of its Subsidiaries;
(v) any acquisition or disposition release of any equity interest right or claim (or series of related rights or claims) relating to the Business, other than as set forth in any (o), involving in excess of Ten Thousand Dollars ($10,000) individually or Twenty-Five Thousand Dollars ($25,000) in the aggregate or other Personthan in the ordinary course of business, consistent with past practice; or
(wo) failure to pay or satisfy when due any Liability of Seller, except where such failure would not have a Material Adverse Effect on the Lottery Assets or the Business; or
(p) an agreement (either written or oral) by VGX Seller or any of its Subsidiaries the Personnel to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (On Point Technology Systems Inc)
Absence of Certain Changes or Events. Since Except as disclosed in Risetime Financial Statements or in Risetime Disclosure Letter, from August 31, 2009 to the date of VGX Balance Sheetthis Agreement, VGX and each of its Subsidiaries Risetime has conducted its business only in the ordinary course consistent with past practice andcourse, since and during such date, (i) with respect to VGX and its Subsidiaries other than VGXI period there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any change in the assets, liabilities, financial condition or operating results of Risetime or any Risetime Subsidiary, except changes in the ordinary course of business that have not caused, in the aggregate, a Risetime Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation damage, destruction or termination loss, whether or not covered by VGX or any of its Subsidiaries of any executive officer or directorinsurance, that would have a Risetime Material Adverse Effect;
(c) any written notice of any actual waiver or threatened termination compromise by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX Risetime or any Risetime Subsidiary of its Subsidiariesa valuable right or of a material debt owed to it;
(d) any damagesatisfaction or discharge of any lien, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsclaim, or encumbrance or payment of any material portion of the assets, of VGX obligation by Risetime or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its SubsidiariesRisetime Subsidiary, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case except in the ordinary course of business and consistent with past practicesthe satisfaction or discharge of which would not have a Risetime Material Adverse Effect;
(e) any material change to a material Contract by which Risetime or any Risetime Subsidiary or any of its respective assets is bound or subject;
(f) any mortgage, pledge, transfer of a security interest in, or pursuant lien, created by Risetime or any Risetime Subsidiary, with respect to existing contractual commitments)any of its material properties or assets, including except liens for taxes not yet due or payable and liens that arise in the making ordinary course of any loan to business and do not materially impair Risetime's or such person (other than advancement Risetime Subsidiary's ownership or use of routine travel, entertainment and other business expenses)such property or assets;
(g) any transaction loans or guarantees made by Risetime or any Risetime Subsidiary to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the type described in Item 404(a) ordinary course of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")its business;
(h) any sale, lease, license, assignment or exclusive license alteration of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) Risetime's method of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business accounting or the business of any identity of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregateauditors;
(i) any material change by VGX declaration or payment of dividend or distribution of cash or other property to Stockholders or any purchase, redemption or agreements to purchase or redeem any shares of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPRisetime Stock;
(j) any material revaluation by VGX issuance of equity securities to any officer, director or any of its Subsidiaries of any of its assetsaffiliate, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;except pursuant to existing Risetime stock option plans; or
(k) any establishment, termination arrangement or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX commitment by Risetime or any Risetime Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthings described in this Section 3.19.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except (a) as set forth ------------------------------------ in Schedule 3.10, or in the SEC Documents, and (b) as otherwise contemplated by this Agreement, since the date of VGX the Company Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI Sheets there has not been or been: (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any Material Adverse Effect on VGX on any of its Subsidiaries;
Effect; (b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities property or propertyany combination thereof) in respect of, of any class of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) the Company or of the Subsidiary, or any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, Company or the pledge or other encumbrance (excluding Permitted Liens) by it of, Subsidiary of any shares of capital stock of the Company or the Subsidiary, or any payment by the Company or the Subsidiary to any Seller in its capacity as a stockholder; (iii) any damage, destruction or casualty loss, whether covered by insurance or not, which had a Material Adverse Effect; (iv) any increase in the rate or terms of compensation or other securities benefits payable or obligations to become payable by the Company or securities convertible into the Subsidiary to their directors, officers or exchangeable for shares of capital stock or other securitieskey employees, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock except increases occurring in the ordinary course of business under the VGX Option Plan, and in accordance with their customary practices; (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(pv) any splitentry into any agreement, combination commitment or reclassification of transaction (including without limitation any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect ofborrowing, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease capital financing) by VGX involving remaining payments the Company or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights Subsidiary, which is material to VGXthe Company or the Subsidiary, except (a) Leases and (b) agreements, commitments or transactions in the ordinary course of business;
business or as contemplated herein; (tvi) any indebtedness incurred change by the Company or guaranteed the Subsidiary, in their respective accounting methods, principles or practices except as required by VGX GAAP; or (vii) any sale, franchise, relocation or closure of any store of the Subsidiary. Since March 29, 1998, each of the Company and the Subsidiary has conducted its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable business in the ordinary course course, consistent with past practice, and has made all reasonable efforts to preserve its relationships with customers, suppliers and others with whom it deals, the absence of business;
(u) which would be reasonably likely to have a Material Adverse Effect, and neither the Company nor the Subsidiary has taken any commencement action that, if taken after the date hereof unless otherwise consistent with the transactions contemplated hereby, would constitute or result in a material breach of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingcovenants set forth herein.
Appears in 1 contract
Samples: Securities Purchase Agreement (MRS Fields Brand Inc)
Absence of Certain Changes or Events. Since the Balance Sheet Date to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, this Agreement (i) with respect to VGX the representation and its Subsidiaries other than VGXI warranty made as of the date of this Agreement) and to the Closing Date (with respect to the representation and warranty made as of the Closing Date):
(a) there has not been any material adverse change in the business, financial condition, operations or (ii) with respect to VGXI only, to results of operations of the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its SubsidiariesAcquired Companies and their Subsidiaries taken as a whole;
(b) any resignation or termination by VGX or neither the Acquired Companies nor any of their Subsidiaries has amended or changed its Subsidiaries of any executive officer or directorCharter Documents;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or neither the Acquired Companies nor any of its Subsidiaries;
(d) any damagetheir Subsidiaries has declared, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting set aside or payment of paid any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, to any of VGX Capital Stock Equity Security or any capital stock of its Subsidiariesother security;
(nd) neither the Acquired Companies nor any purchaseof their Subsidiaries has split, redemption combined or reclassified any Equity Security or other acquisition security, or issued, or authorized for issuance, any Equity Security or other security;
(e) neither the Acquired Companies nor any of their Subsidiaries has altered any term of any outstanding Equity Security or other security;
(f) neither the Acquired Companies nor any of their Subsidiaries has (i) increased or modified the compensation or benefits payable or to become payable by VGX the Acquired Companies or any of its their Subsidiaries of to any of VGX Capital Stock its current or former directors, employees or consultants, (ii) increased or modified any bonus, severance, termination, pension, insurance or other employee benefit plan, payment or arrangement made to, for or with any current or former directors, employees or consultants of the Acquired Companies or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option Subsidiaries, or purchase agreements(iii) entered into any employment, severance or termination agreement;
(og) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares inventory in the Ordinary Course of VGX Common Stock pursuant to the exercise of VGX OptionsBusiness, and (ii) the granting grant of options to purchase VGX Common Stock non-exclusive Acquired Company Licenses in the ordinary course Ordinary Course of business Business, neither the Acquired Companies nor any of their Subsidiaries has sold, leased, transferred or assigned any property or assets of the Acquired Companies or any such Subsidiary;
(h) neither the Acquired Companies nor any of their Subsidiaries has incurred, assumed or guaranteed any Indebtedness;
(i) neither the Acquired Companies nor any of their Subsidiaries has created or assumed any Lien on any asset (other than Liens arising under lease financing arrangements existing as of the VGX Option PlanBalance Sheet Date and Liens for Taxes not yet due and payable with respect to which the Acquired Companies and their Subsidiaries maintain adequate reserves);
(j) neither the Acquired Companies nor any of their Subsidiaries has made any loan, advance or capital contribution to, or investment in, any Person other than travel loans or advances in the Ordinary Course of Business;
(k) neither the Acquired Companies nor any of their Subsidiaries has entered into any Contract or transaction involving more than $25,000 or outside the Ordinary Course of Business;
(l) neither the Acquired Companies nor any of their Subsidiaries and, to Sellers’ Knowledge, no other party has accelerated, terminated, modified or cancelled any Contract, Acquired Company License or Third Party License or transaction involving more than $25,000;
(m) neither the Acquired Companies nor any of their Subsidiaries has sold, transferred, pledged, assigned or granted, and there has been no material reduction in the value of, any Acquired Company Intellectual Property other than grant of non-exclusive Acquired Company Licenses in the Ordinary Course of Business;
(iiin) issuances upon exercise there has not been any trade dispute as defined by section 218 Trade Union and Labour Relations (Consolidation) Xxx 0000.
(o) to Sellers’ Knowledge, there has not been any violation of VGX Warrants or other rights disclosed pursuant conflict with any Law to Section 2.2which the business, operations, assets or properties of the Acquired Companies or any of their Subsidiaries are subject;
(p) any splitnone of Sellers, combination or reclassification of any of VGX Capital Stock the Acquired Companies or the capital stock Subsidiaries of the Acquired Companies has agreed or entered into any of its Subsidiaries' arrangement to take any action which, if taken prior to the date hereof, would have made any representation or issuance warranty set forth in this Article IV untrue or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesincorrect;
(q) there has not been any amendment material damage, destruction or loss with respect to the property and assets of the Certificate Acquired Companies or any of Incorporation their Subsidiaries, whether or By-Laws of VGXnot covered by insurance;
(r) none of the Acquired Companies or any capital expenditure or execution Subsidiary of the Acquired Companies has made any lease by VGX involving remaining payments or obligations change in excess of $500,000 individually or $1,000,000 in the aggregateaccounting practices;
(s) any cancellation by VGX none of the Acquired Companies or any Subsidiary of the Acquired Companies has made any Tax election, changed its Subsidiaries method of Tax accounting or settled any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;claim for Taxes; or
(t) any indebtedness incurred or guaranteed by VGX none of Seller, the Acquired Companies or any Subsidiary of its Subsidiaries for borrowed money the Acquired Companies has agreed, whether in writing or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000otherwise, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since the Interim Balance Sheet Date to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, this Agreement (i) with respect to VGX the representation and its Subsidiaries other than VGXI warranty made as of the date of this Agreement) and to the Closing Date (with respect to the representation and warranty made as of the Closing Date):
(a) there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any a Company Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation or termination by VGX or neither the Company nor any of its Subsidiaries of any executive officer has amended or directorotherwise modified its organizational documents;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of neither the material assets, or any material portion of the assets, of VGX or Company nor any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiarieshas declared, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting set aside or payment of paid any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, to any of VGX Capital Stock or any capital stock of its Subsidiariessecurities;
(nd) neither the Company nor any purchaseof its Subsidiaries has split, redemption combined or reclassified any of its securities, or issued, or authorized for issuance, any securities;
(e) neither the Company nor any of its Subsidiaries has altered any term of any outstanding securities;
(f) except as set forth in Section 3.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has (i) increased or modified the compensation or benefits payable or to become payable to any of their respective current or former directors or salaried employees, (ii) increased or modified any bonus, severance, termination, pension, insurance or other acquisition by VGX employee benefit plan, payment or arrangement made to, for or with any of its current or former directors or salaried employees, or (iii) entered into any employment, severance or termination agreement;
(g) neither the Company nor any of its Subsidiaries has sold, leased, transferred or assigned any property or assets of the Company or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of businessbusiness consistent with past practice;
(th) neither the Company nor any indebtedness incurred of its Subsidiaries has incurred, assumed or guaranteed by VGX any Indebtedness, or modified the terms of any Indebtedness outstanding as of the Interim Balance Sheet Date;
(i) neither the Company nor any of its Subsidiaries has incurred any material Liability or created or assumed any Lien on any asset, except for Permitted Liens and Liens arising under lease financing arrangements existing as of the Interim Balance Sheet Date;
(j) neither the Company nor any of its Subsidiaries has made any loan, advance or capital contribution to, or investment in, any Person except for travel loans or advances in the ordinary course of business consistent with past practice;
(k) neither the Company nor any of its Subsidiaries has entered into any Material Contract, except in the ordinary course of business consistent with past practice and as disclosed to Parent;
(l) (i) no Material Contract has been modified, (ii) no rights under any Material Contract have been waived or accelerated and (iii) no Contract that would be required to be listed as a Material Contract pursuant to Section 3.17 if such Contract were in effect on the date hereof has been terminated or cancelled, except in the ordinary course of business consistent with past practice and as disclosed to Parent;
(m) there has not been any labor dispute, other than individual grievances;
(n) there has not been any material violation of or conflict with any Law to which the business, operations, assets or properties of the Company or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or are subject;
(o) neither the Company nor any of its Subsidiaries has agreed or entered into any arrangement to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in excess this Article III untrue or incorrect as of $500,000the date when made;
(p) there has not been any damage, destruction or any loans made or agreed loss with respect to be made by VGX the Real Property and assets of the Company or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable whether or not covered by insurance, except for any damage, destruction or loss which would not, individually or in the ordinary course of businessaggregate, have a Company Material Adverse Effect;
(uq) any commencement of Legal Proceedings by VGX or neither the Company nor any of its SubsidiariesSubsidiaries has made any material change in accounting practices;
(vr) neither the Company nor any acquisition of its Subsidiaries has made any Tax election, changed any of its methods of Tax accounting or disposition of settled any equity interest in any other Personmaterial claim for Taxes; or
(ws) any agreement by VGX or neither the Company nor any of its Subsidiaries has agreed, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as set forth on Schedule 2.13 or as otherwise reflected in the ordinary course consistent with past practice andthis Agreement, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveBalance Sheet Date:
(a) any there has not occurred a Material Adverse Effect on VGX on any of its SubsidiariesEffect, and no fact, circumstance or event exists or has occurred which would, individually or in the aggregate, result in a Material Adverse Effect;
(b) any resignation or termination by VGX or any Seller has operated the Business in the Ordinary Course of its Subsidiaries of any executive officer or directorBusiness;
(c) any written notice of any actual or threatened termination by Seller has not suffered any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or Loss to any of its Subsidiaries;
(d) any damageproperty, destruction or loss (whether or not covered by insurance;
(d) materially and adversely affecting Seller has not declared, set aside or paid any of the material assetsdividends, unit splits or any material portion of the assets, of VGX or distributions on any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesEquity Securities;
(e) any commencement of Legal Proceedings against VGX or any of Seller has not amended its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingorganizational documents;
(f) any material increase other than sales of Inventory in the compensation payable to any officer Ordinary Course of Business, Seller has not sold, leased, transferred or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making otherwise disposed of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)property or assets;
(g) Seller has not incurred any transaction Indebtedness (other than drawings on Seller’s revolving line of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC"credit);
(h) except as otherwise contemplated by this Agreement, Seller has not issued or sold or acquired or redeemed any sale, lease, license, assignment Equity Securities (or exclusive license of securities convertible into Equity Securities) or granted any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregateEquity Securities;
(i) Seller has not made or become obligated to make any material change by VGX equity investment in any new business or other entity or to purchase substantial assets of any of its Subsidiaries in its accounting methods, principles new business or practices, except as required by concurrent changes in US GAAPother entity;
(j) Seller has not entered into, materially amended or become subject to any material revaluation by VGX joint venture, partnership or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businesssimilar arrangement;
(k) Seller has not made or become obligated to make any establishmentcapital expenditures, termination or amendment other than in the Ordinary Course of any VGX Employee PlanBusiness;
(l) Seller has not written down the value of any material increase Inventory or written off as uncollectable any notes or Accounts Receivable, other than in the Ordinary Course of severance or termination pay to any employee of VGX or any Subsidiary of VGXBusiness;
(m) Seller has not disposed of or permitted to lapse the rights to use any declarationpatent, setting aside or payment of any dividend on, trademark or other distribution (whether in cash, stock, equity securities Intellectual Property or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiariesdisclosed trade secrets to a third party;
(n) Seller has not paid or committed to pay any purchase, redemption bonus or other acquisition by VGX amount not previously required to be paid, has not forgiven any Indebtedness, and has neither increased nor accelerated the due date of compensation, to any officer, director, agent, employee or any of its Subsidiaries consultant to Seller or adopted, granted, extended or increased the rate or terms of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsSeller Benefit Plan;
(o) Seller has not paid, discharged settled or satisfied any issuance material claims or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockliabilities, other than (i) the issuancepayments, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock discharges or satisfactions reserved against in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2Balance Sheet;
(p) any split, combination or reclassification Seller has not changed its cash management customs and practices (including the collection of any receivables and payment of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariespayables);
(q) Seller has not changed or modified any amendment of accounting practice or procedure or the Certificate of Incorporation or By-Laws of VGXmanner in which it maintains its books and records;
(r) Seller has not accelerated any capital expenditure monies due to or execution payable by Seller, including without limitation any Accounts Receivable of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregateSeller;
(s) Seller has not received any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material deposits from customers for work to VGX, except in be performed following the ordinary course of businessClosing Date;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000Seller has not terminated, or accepted a resignation terminating, the employment of any loans made or agreed to be made by VGX or any senior manager of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessSeller;
(u) any commencement of Legal Proceedings by VGX or Seller has not failed to pay any of its SubsidiariesAccounts Payable in the Ordinary Course of Business;
(v) any acquisition or disposition Seller has not written up the value of any equity interest Inventory or Intellectual Property in any other Persona manner not consistent with its usual practice; orand
(w) any agreement by VGX or any of its Subsidiaries Seller has not agreed to do take any of the foregoingforegoing actions.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetNovember 30, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and2017, since such date, (i) with respect to VGX CCR and its Subsidiaries other than VGXI there has not been or (ii) NovaGold Canada, and since December 31, 2017 with respect to VGXI onlyGCP and the Operator, to the Knowledge NovaGold Subs, GCP and the Operator have operated in the Ordinary Course of VGXBusiness, there has not been nor has VGX been asked to act and, in any management particular, but without limitation, neither of the NovaGold Subs, GCP or stockholder capacity to allow for or approvethe Operator has:
(a) any Material Adverse Effect on VGX on any amended its articles, by-laws, partnership agreement or similar document adopted or filed in connection with the creation, formation or organization of its Subsidiariesthe NovaGold Sub, GCP or the Operator, as the case may be;
(b) directly or indirectly, declared, set aside for payment or paid any resignation dividend or termination by VGX made any other payment or distribution on or in respect of any of its Subsidiaries of any executive officer shares or directorpartnership interests, as the case may be;
(c) any written notice of any actual redeemed, purchased, retired or threatened termination by any material customerotherwise acquired, supplierdirectly or indirectly, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesshares or partnership interests, as the case may be;
(d) issued or sold any shares or partnership interests, as the case may be, or other securities or issued, sold or granted any option, warrant or right to purchase any of its shares or partnership interests, as the case may be, or other securities or issued any security convertible into its shares or partnership interests, as the case may be, granted any registration rights or otherwise made any change to its authorized or issued share capital;
(e) made any changes in its accounting principles, policies, practices or methods; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FROM THE U.S. SECURITIES AND EXCHANGE COMMISSION FOR PORTIONS OF THIS AGREEMENT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED WITH [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
(f) incurred or assumed any liabilities (including any Indebtedness) or obligations of any nature, whether absolute, accrued, contingent or otherwise, except unsecured current liabilities incurred in the Ordinary Course of Business;
(g) mortgaged, pledged, granted a security interest in or otherwise created a Lien on any of its property or assets, except in the Ordinary Course of Business and in amounts which, individually and in the aggregate are not material to the financial condition of the NovaGold Sub, GCP or the Operator, as applicable;
(h) terminated, cancelled, modified or amended in any material respect or received notice or a request for termination, cancellation, modification or amendment of any Material Contract or taken or failed to take any action that would entitle any party to a Material Contract to terminate, modify, cancel or amend any Material Contract;
(i) incurred any Indebtedness to any other Person or incurred any other liability or obligation to any other Person which is required to be classified as a liability on the liability side of a balance sheet in accordance with generally accepted accounting principles;
(j) given or agreed to give or become a party to or bound by any guarantee, surety or indemnity in respect of Indebtedness or other obligations or liabilities of any other Person or become a party to any other commitment by which either NovaGold Sub, GCP or the Operator, as the case may be, is, or is contingently, responsible for such Indebtedness or other liability or obligation;
(k) incurred any material damage, destruction or loss with respect to any of the assets or properties of the NovaGold Sub, GCP or the Operator (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitmentsinsured), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) purchased or otherwise acquired any material increase interest in any securities of severance or termination pay to any employee of VGX or any Subsidiary of VGXother Person;
(m) discharged, settled or satisfied any declarationLegal Proceedings, setting aside or payment other than Legal Proceedings reflected in the most recent Financial Records and for amounts not in excess of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;the amount reserved against therein; or
(n) any purchaseagreed, redemption committed or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any understanding to take any actions enumerated in paragraphs (a) to (m) of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthis Section 3.1(30).
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as set forth in the ordinary course consistent with past practice andSCHEDULE 3.3, since such dateSeptember 30, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1996, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) no increase in the indebtedness for borrowed money incurred by AAP or the AAP Subsidiaries and no incurrence of any Material Adverse Effect on VGX on any other obligation or liability (fixed or contingent), except for borrowings under the revolving credit facility of its SubsidiariesAAP and trade obligations and other liabilities incurred in the ordinary course of business consistent with past practice;
(b) any resignation no material adverse change in the assets, liabilities, properties, business, profits, prospects or termination by VGX condition of AAP or any the AAP Subsidiaries and, to the best knowledge of its Subsidiaries AAPH, no occurrence of any executive officer fact or directorexistence of any condition which might reasonably be expected to cause such a change in the future;
(c) no damage, destruction, loss or claim to or against any written notice property or assets of any actual AAP or threatened termination the AAP Subsidiaries, whether or not covered by any material customerinsurance, supplierwhich materially affects the assets, partnerliabilities, licensorproperties, licensee business, profits, prospects or other third party having business relations with VGX condition of AAP or any of its the AAP Subsidiaries;
(d) no sale, transfer, other disposition, mortgage or pledge of, and no imposition of any damagelien, destruction charge or loss (whether or not covered by insurance) materially and adversely affecting encumbrance on, any of the material assets, properties or any material portion assets of AAP or the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case resulting from transactions in the ordinary course of business and consistent with past practicespractice;
(e) no contribution to the capital, no dividend or pursuant to existing contractual commitments)other distribution or payment in respect of, including and no subdivision, consolidation or other recapitalization of, the making capital stock of AAP or the AAP Subsidiaries and no declaration or authorization of any loan of the foregoing;
(f) no issuance or payment of any special bonuses to such person (other than advancement employees of routine travel, entertainment and other business expenses)AAP or the AAP Subsidiaries;
(g) any transaction no agreements or understandings with respect to the merger, consolidation, liquidation or reorganization of AAP or the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")AAP Subsidiaries;
(h) any sale, lease, license, assignment no termination or exclusive license receipt of notice of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) termination of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course material agreement of VGX's business AAP or the business of AAP Subsidiaries, nor has AAP or the AAP Subsidiaries entered into any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in material agreement or made any one case or $1,000,000 in the aggregate;material commitment; and
(i) no actual or overtly threatened employee strikes, work stoppages, slow- downs or lock-outs affecting AAP or the AAP Subsidiaries, nor any material change by VGX or in the relationship of AAP and the, AAP Subsidiaries with any of its Subsidiaries in its accounting methodsemployees, principles salesmen, distributors, sales representatives or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingindependent contractors.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Aap Holdings Inc)
Absence of Certain Changes or Events. Since the date Balance Sheet Date (and in the case of VGX Balance Sheetactions referenced in clauses (g) and (h) of this Section 3.18, VGX for the period ending on the Effective Date), Sellers have conducted their business and each of its Subsidiaries has conducted its business operations in the ordinary course consistent with past practice and, since such dateexcept as disclosed on Schedule 3.18, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvehave not:
(a) made any Material Adverse Effect on VGX on material increase in compensation paid, payable or to become payable to any of its Subsidiariesemployees other than those in the normal and usual course of business or in connection with any change in an employee’s responsibilities, or promised, declared, paid or accrued any bonus payment to any of the FCC Employees, or made any material change in personnel policies, employee benefits, or other compensation arrangements affecting the FCC Employees (including the promise or award of additional vacation time);
(b) made any resignation sale, assignment, lease, or termination by VGX other transfer of WEMT License Assets owned or any used in the business having a fair market value in excess of its Subsidiaries Twenty-five Thousand Dollars ($25,000) in the aggregate for all such WEMT License Assets, except (A) as required under existing Contracts in the ordinary course of any executive officer business, (B) in connection with the acquisition of similar or directorreplacement WEMT License Assets, (C) inventory sold in the ordinary course of business, or (D) obsolete WEMT License Assets or other WEMT License Assets not used in the business;
(c) any written notice of any actual or threatened termination by incurred any material customer, supplier, partner, licensor, licensee loss of or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss to the WEMT License Assets (whether or not covered by insurance) materially and adversely affecting any of the material assets), or voluntarily waived any material portion of the assets, of VGX rights or voluntarily cancelled any of its Subsidiaries debts or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (claims other than increases in each case in connection with general performance reviews and annual salary increases in each case settlement of claims or debts in the ordinary course of business and consistent with past not exceeding Twenty-five Thousand Dollars ($25,000) in the aggregate for all such rights, debts or claims so settled during such period;
(d) made any changes in Sellers’ accounting practices;
(e) suffered any write-down of the value of any WEMT License Assets to the extent exceeding Twenty-five Thousand Dollars ($25,000) in the aggregate during such period;
(f) transferred or granted any right under or entered into any settlement regarding the breach or infringement of any license, patent, copyright, trademark, trade name, domain name, franchise, or pursuant to similar right or modified any existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)right;
(g) made any transaction amendment of the type described any material term of, or terminated or failed to renew (in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC"accordance with its terms);, any Assumed Contract or License; or
(h) suffered any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingMaterial Adverse Effect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Absence of Certain Changes or Events. Since Except as disclosed in Section 3.2(e) of the Merge Disclosure Letter or Publicly Disclosed by Merge, from September 30, 2004 through to the date of VGX Balance Sheet, VGX and hereof each of its Merge and the Merge Material Subsidiaries has conducted its business only in the ordinary and regular course of business consistent with past practice and, since such date, and there has not occurred:
(i) a Material Adverse Change with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its SubsidiariesMerge;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (loss, whether or not covered by insurance) materially and adversely affecting any of the material assetsinsurance or not, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiariesthat would reasonably be expected to have a Material Adverse Effect on Merge;
(eiii) any commencement redemption, repurchase or other acquisition of Legal Proceedings against VGX Merge Common Shares or any of its Subsidiaries, and no Person has notified VGX Merge preferred stock by Merge or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, any of VGX Capital Stock to Merge Common Shares or any capital stock of its SubsidiariesMerge preferred stock;
(niv) any purchase, redemption material increase in or other acquisition modification of the compensation payable or to become payable by VGX or it to any of its Subsidiaries directors or officers, or any grant to any such director or officer of any of VGX Capital Stock increase in severance or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementspay;
(ov) any issuance increase in or reservation modification of any bonus, pension, insurance or benefit arrangement (including the granting of stock options, restricted stock awards or stock appreciation rights) made to, for issuance by VGX or with any of its Subsidiaries directors or officers;
(vi) any acquisition or sale of its property or assets aggregating 10% or more of Merge’s total consolidated property and assets as at December 31, 2003 other than in the ordinary and regular course of business consistent with past practice;
(vii) any entering into, amendment of, relinquishment, termination or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization non-renewal by it of any subscriptionsmaterial contract, rightsagreement, warrants license, franchise, lease transaction, commitment or options to acquire any shares of capital stock other right or any securities convertible into capital stockobligation, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary and regular course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice;
(pviii) any resolution to approve a split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesoutstanding shares;
(qix) any amendment of the Certificate of Incorporation change in its accounting methods, principles or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personpractices; or
(wx) any agreement by VGX or arrangement to take any of its Subsidiaries action which, if taken prior to do the date hereof, would have made any representation or warranty set forth in this Agreement materially untrue or incorrect as of the foregoingdate when made.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as set forth on SCHEDULE 4.3, since February 28, 2001 (and, with respect to Section 4.3(n), since February 28, 2000), the date of VGX Balance SheetIndustrial Power Transmission Business has been operated by the Sellers, VGX the Sold Subsidiary and each of its Subsidiaries has conducted its business the Spanish Subsidiary in the ordinary course consistent with past practice andof business, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation change in accounting methods, principles or termination by VGX practices affecting the Industrial Power Transmission Assets, the Assumed Liabilities or any of its Subsidiaries of any executive officer or directorthe Industrial Power Transmission Business;
(c) any written notice revaluation of any actual of the Industrial Power Transmission Assets, including without limitation writing down the value of inventory or threatened termination by any material customer, supplier, partner, licensor, licensee writing off notes or other third party having business relations with VGX or any of its Subsidiariesaccounts receivable;
(d) any material damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX Industrial Power Transmission Assets or any of its Subsidiariesthe Industrial Power Transmission Business;
(e) cancellation of any commencement indebtedness or waiver or release of Legal Proceedings against VGX any right or any claim of its Subsidiariesthe Sellers, and no Person has notified VGX the Sold Subsidiary or any of its Subsidiaries in writing that itthe Spanish Subsidiary relating to their activities or properties, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingwhich had or will have an adverse effect on the Industrial Power Transmission Assets or the Industrial Power Transmission Business;
(fi) any material increase in the base compensation payable or to become payable to any officer or director employee of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the Industrial Power Transmission Business outside the ordinary course of business and consistent with past practicesbusiness, (ii) grant or accrual of any loan, bonus, fees, incentive compensation, service award or other similar benefit, to or for the benefit of any of the employees of the Industrial Power Transmission Business, except pursuant to the Seller Plans or any employment or consulting contract in effect as of the date hereof, (iii) adoption of, or pursuant to existing contractual commitments)material amendment to, including the making of any loan to such person Seller Plan (other than advancement the extension of routine travelcoverage to any employee of the Industrial Power Transmission Business who became eligible under any such Seller Plan following the date hereof), entertainment and other business expenses)(iv) entry into or cancellation of any employment or consulting agreement or agreement to any material amendment to any employment or consulting agreement in effect as of the date hereof, or (v) hired any employee who has an annual salary in excess of $95,000, or (vi) terminated any employee having an annual salary or wages in excess of $95,000;
(g) amendment, cancellation or termination of any transaction of Material Contract or Permit relating to the type described in Item 404(a) of Regulation S-K of Industrial Power Transmission Assets or the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) Industrial Power Transmission Business or entry into any salecontract, commitment, agreement, lease, license, assignment transaction or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than permit that is not in the ordinary course of business;
(kh) any establishmentmortgage, termination pledge or amendment other Encumbrance of any VGX Employee Planmaterial Industrial Power Transmission Assets, the assets of the Sold Subsidiary or the assets of the Spanish Subsidiary;
(li) any material increase of severance sale, assignment or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries transfer of any of VGX Capital Stock or any other securities the Industrial Power Transmission Assets, the assets of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, Sold Subsidiary or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares assets of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockthe Spanish Subsidiary, other than (i) any asset having a book value individually of less than $10,000 as of the issuancedate hereof, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, or (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except Inventory in the ordinary course of business;
(tj) any indebtedness incurred single capital expenditure or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries therefor that is in excess of $500,000100,000 (other than expenditures made in accordance with the capital expenditure budget provided to Buyer on or prior to the date hereof);
(k) failure to pay or satisfy when due any Liability of the Industrial Power Transmission Business, except where the failure would not have a Material Adverse Effect;
(l) failure of the Sellers, the Sold Subsidiary or the Spanish Subsidiary to carry on diligently the Industrial Power Transmission Business in the ordinary course so as to keep available to Buyer the services of the employees of the Industrial Power Transmission Business, and to preserve for Buyer the Industrial Power Transmission Assets and the Industrial Power Transmission Business and the goodwill of the suppliers, customers and distributors of the Industrial Power Transmission Business;
(m) disposition or lapsing of any Transferred Intellectual Property or any disposition to any person of any Transferred Intellectual Property not theretofore a matter of public knowledge;
(n) the Industrial Power Transmission Business has not paid (or been paid by) any affiliate of the Sellers, the Sold Subsidiary or the Spanish Subsidiary that is a direct or indirect subsidiary of MIV Holdings, S.A. (each, a "SELLER AFFILIATE"), or charged (or been charged by) any loans made Seller Affiliate, for (i) goods sold or agreed services rendered by or to the Industrial Power Transmission Business, or (ii) corporate overhead expenses, management fees, legal or accounting fees, capital charges or similar charges or expenses, which is (x) on a basis that is either more or less favorable to the Industrial Power Transmission Business than the basis that would be made employed by VGX a party who is not an affiliate of the Sellers, the Sold Subsidiary or any the Spanish Subsidiary, (y) pursuant to an arrangement that will not continue after the Closing as part of its Subsidiariesthe arrangements included in the Ancillary Agreements, other than reasonable travel and entertainment expense advances and trade accounts receivable (z) not described in the Accounting Principles;
(o) efforts by the Sellers, out of the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX , to materially accelerate the accounts receivable attributable to the Industrial Power Transmission Business or any of its Subsidiaries;
(v) any acquisition or disposition to materially delay the payment of any equity interest in any other Personaccounts payable attributable to the Industrial Power Transmission Business; or
(wp) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthings described in the preceding clauses (a) through (o) other than as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetDecember 31, VGX and each of its Subsidiaries 2003, Seller has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXexcept as set forth on Schedule 3.17, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(ai) any change in the condition (financial or otherwise), assets, liabilities, operations, performance or business of Seller, except for changes which have been in the ordinary course of business which, in accordance with GAAP applied in a manner consistent with such application on April 30, 2004, have been fully recorded in the books and records of Seller and which would not, individually or in the aggregate, have a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(bii) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(cA) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable or to become payable by Seller to any officer Seller Personnel whose total compensation for services rendered to Seller is currently at an annual rate of more than $50,000 or director any increase of VGX general applicability in the compensation payable to Seller Personnel, (B) bonus, incentive compensation, service award or other like benefit, granted, made or accrued, contingently or otherwise, of or to the credit of Seller Personnel, or (C) employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by Seller;
(iii) addition to or modification of any of the employee benefit plans, arrangements or practices;
(iv) establishment, agreement to establish or any change in any pension, retirement or welfare plan for the benefit of any Seller Personnel not theretofore in effect;
(v) mortgage, pledge or subjection to any Encumbrance of any of the Purchase Assets, tangible or intangible, of Seller;
(vi) sale, assignment or transfer of any Purchased Assets, tangible or intangible, of Seller other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, practice or pursuant to existing contractual commitments), including the making any conducting of any loan to such person (business other than advancement of routine travel, entertainment in the ordinary course and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property)consistent with past practice, or any encumbrance (excluding Permitted Liens) acquisition of all or any part of the assets, properties, stock or business of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), Person other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than consistent with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregatepast practice;
(ivii) any material change by VGX or any of its Subsidiaries Seller in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(jviii) any material revaluation amendment, cancellation or termination by VGX or any of its Subsidiaries Seller of any contract, agreement or other instrument which is material to Seller or its business;
(ix) liability incurred by Seller, except liabilities incurred in the ordinary course of its assetsbusiness consistent in both kind and amount with past practices of Seller and which would not, including writing down individually or in the value aggregate, have a Material Adverse Effect;
(x) payment, discharge or satisfaction of capitalized inventory any claims, liabilities or writing off notes obligations (absolute, accrued, contingent or accounts receivable otherwise) of Seller other than in the ordinary course of businessbusiness and consistent with past practice;
(kxi) any establishment, termination capital expenditure or amendment the execution of any VGX Employee Planlease with respect to any aspect of the business of Seller, or any incurring liability therefor, involving payments in excess of $20,000 in the aggregate, including all forward commitments to purchase equipment or inventory;
(lxii) any material increase borrowing of severance money by Seller or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment guaranteeing of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any indebtedness of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition others by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, Seller other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice;
(pxiii) any split, combination or reclassification lending of any money or otherwise pledging the credit of VGX Capital Stock or the capital stock of Seller to any of its Subsidiaries' or issuance or authorization of issuance of any party other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesthan Seller;
(qxiv) any amendment failure to operate the business of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except Seller in the ordinary course so as to preserve the business intact, to keep available to Seller the services of businessSeller Personnel employed as of the date hereof, and to preserve for Purchaser the goodwill of the suppliers, customers and others having business relations with Seller except where such failure would not, individually or in the aggregate, have a Material Adverse Effect;
(txv) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000cancellation of, or any loans made or agreed failure to be made by VGX or any continue, insurance coverages of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessSeller;
(uxvi) failure to pay any commencement current obligations of Legal Proceedings by VGX or any Seller in accordance with the general practices of its SubsidiariesSeller;
(vxvii) damage, destruction or casualty loss, whether covered by insurance or not which would, individually or in the aggregate, have a Material Adverse Effect;
(xviii) transaction entered into with any acquisition Affiliate (an “Affiliate,” for the purposes of this Agreement, shall include with respect to any Person, a director or disposition officer of such Person or any other Person which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person) of Seller, any stockholder or Affiliate of Seller, including any dividend payment;
(xix) other event or condition of any equity interest character which, individually or in any other Person; or
(w) the aggregate, has had or could reasonably be expected to have a Material Adverse Effect or any agreement by VGX or any of its Subsidiaries to do any of the foregoing; or
(xx) of the following payments: (A) for broker fees, advisor fees, consultant fees or other professional fees relating to the transactions contemplated by this Agreement or any other sale transaction, merger or other financing transaction, (B) to any equity holders (including, without limitation, interest, dividends or fees thereto), (C) to employees (including, without limitation, any bonuses, retention payments or severance payments, except for ordinary course payroll of employees or (D) relating to management fees or similar fees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ssa Global Technologies, Inc)
Absence of Certain Changes or Events. (a) Since December 31, 2013 to the date of VGX Balance Sheetthis Agreement, VGX the Seller and each of its the Seller Subsidiaries has have conducted its business their businesses only in the ordinary course and in a manner consistent with past practice and, since such dateDecember 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2013, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any change in the financial condition, results of operations, business, assets, properties, liabilities or reserves of the Seller and any of the Seller Subsidiaries that, individually or in the aggregate, has had, or would be reasonably expected to have a Seller Material Adverse Effect on VGX on any of its Subsidiaries;
Effect, (b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any assets of the Seller or any of the material assetsSeller Subsidiaries that has had, or any material portion of the assetswould be reasonably expected to have, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
a Seller Material Adverse Effect, (eiii) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries the Seller in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(jiv) any material revaluation by VGX or any of its Subsidiaries the Seller of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than assets in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase respect, (v) except for regular quarterly cash dividends on the Seller Common Stock with usual record and payment dates, to the date of severance or termination pay to this Agreement, any employee of VGX or any Subsidiary of VGX;
(m) any declaration, declaration setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital shares of Seller Common Stock or any capital stock of its Subsidiaries;
(n) any purchaseredemption, redemption purchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries the securities of any indebtedness Seller Subsidiary, (vi) any increase in the wages, salaries, bonuses, compensation, pension, or waiver other fringe benefits or perquisites payable to any executive officer, employee, or director or any grant of any rights material to VGXseverance or termination pay, except in the ordinary course of business;business consistent with past practices, (vii) any strike, work stoppage, slow‑down or other labor disturbance, (viii) the execution of any collective bargaining agreement or Contract with a labor union or organization, or (ix) any union organizing activities.
(tb) any indebtedness incurred To the Seller’s Knowledge, no third Person has used, with or guaranteed by VGX without permission, the Intellectual Property of the Seller or any Seller Subsidiary in connection with the marketing, advertising, promotion or sale of such third party’s products or services. Neither Seller nor any Seller Subsidiary is a party to any joint marketing or other affinity marketing program with a third party. The Seller and all Seller Subsidiaries have valid licenses for, or exclusively own free and clear of any Liens, all Intellectual Property presently used or proposed to be used in the conduct of the business of the Seller and the Seller Subsidiaries. The Seller and the Seller Subsidiaries have taken all actions reasonably necessary to ensure full protection of its owned Intellectual Property under all applicable Laws. No claims are pending that allege that the Seller or the Seller Subsidiaries for borrowed money are infringing or otherwise adversely affecting the rights of any commitment Person with regard to borrow money entered into by VGX any Intellectual Property. To the Knowledge of the Seller and the Seller Subsidiaries, no Person is infringing the rights of the Seller or the Seller Subsidiaries with respect to any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingtheir respective owned Intellectual Property.
Appears in 1 contract
Samples: Merger Agreement (First Business Financial Services, Inc.)
Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents or on Schedule 4.16 of the Disclosure Schedule, or as approved by the Bankruptcy Court prior to the date of VGX Balance Sheetthis Agreement, VGX or as required or expressly permitted pursuant to the terms of this Agreement, since the Petition Date, Sellers have maintained and each of its Subsidiaries has conducted its business operated the Acquired Assets in the ordinary course consistent with past practice and, since such date, (i) and the Acquired Subsidiaries have maintained and operated their assets in the ordinary course consistent with respect to VGX past practice and its Subsidiaries other than VGXI there has not been any event, violation or (ii) with respect to VGXI onlyother matter that could, individually or in the aggregate, have a Material Adverse Effect other than the filing of the Chapter 11 Cases and the restrained cash resources leading up to the Knowledge filing of VGXthe Chapter 11 Cases. Without limiting the foregoing, there has not been nor has VGX been asked since the Petition Date, except as disclosed in the SEC Documents or on Schedule 4.16 of the Disclosure Schedule or as approved by the Bankruptcy Court, or as required or expressly permitted pursuant to act in any management or stockholder capacity to allow for or approvethe terms of this Agreement:
(a) neither any Material Adverse Effect on VGX on Seller, nor any Acquired Subsidiary, has sold, leased, transferred, or assigned any assets, tangible or intangible, outside the ordinary course of its Subsidiariesbusiness;
(b) neither any resignation Seller, nor any Acquired Subsidiary, has entered into any agreement, contract, lease, or termination by VGX or any license outside the ordinary course of its Subsidiaries of any executive officer or directorbusiness;
(c) no party (including any written notice of Seller or any actual Acquired Subsidiary) has accelerated, terminated, made material modifications to, or threatened termination by canceled any material customeragreement, suppliercontract, partnerlease, licensor, licensee or other third party having business relations with VGX license to which any Seller or any Acquired Subsidiary is a party or by which any of its Subsidiariesthem is bound;
(d) neither any Seller, nor any Acquired Subsidiary, has imposed any Lien upon any of its assets, tangible or intangible;
(e) neither any Seller, nor any Acquired Subsidiary, has made any capital expenditures outside the ordinary course of business;
(f) neither any Seller, nor any Acquired Subsidiary, has made any capital investment in, or any loan or other advance of money to, any other Person;
(g) neither any Seller, nor any Acquired Subsidiary, has transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Owned Intellectual Property;
(h) no Acquired Subsidiary has issued, sold, or otherwise disposed of any of its Equity Interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its Equity Interests;
(i) neither any Seller, nor any Acquired Subsidiary, has declared, set aside, or paid any dividend or made any distribution with respect to its Equity Interests (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its Equity Interests;
(j) neither any Seller, nor any Acquired Subsidiary, has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of to its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessproperty;
(k) neither any establishmentSeller, termination nor any Acquired Subsidiary, has made any loan to, or amendment entered into any other transaction with, any of any VGX Employee Planits managers, officers, or employees;
(l) neither any material increase Seller, nor any Acquired Subsidiary, has entered into or terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of severance any such existing contract or termination pay to any employee of VGX or any Subsidiary of VGXagreement;
(m) neither any declarationSeller, setting aside or payment nor any Acquired Subsidiary, has granted any increase in the base compensation of any dividend onof its managers, officers, or employees and no current employee has been promised or lead to believe that he or she will receive an increase in salary, bonuses, commissions, severance or other distribution (whether in cashcompensation, stock, an issuance of equity securities incentives or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiariesadditional employee benefits beyond such employee’s current compensation;
(n) neither any purchaseSeller, redemption nor any Acquired Subsidiary, has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other acquisition by VGX plan, contract, or commitment for the benefit of any of its Subsidiaries of managers, officers, or employees (or taken any of VGX Capital Stock or such action with respect to any other securities of VGX Employee Benefit Plan except to comply with or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsaddress changes in applicable Law);
(o) neither any issuance or reservation Seller, nor any Acquired Subsidiary, has made any other change in employment terms for issuance by VGX or any of its Subsidiaries ofmanagers, officers, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2employees;
(p) neither any splitSeller, combination nor any Acquired Subsidiary, has created, incurred, assumed, or reclassification of guaranteed any of VGX Capital Stock indebtedness for borrowed money or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariescapitalized lease obligation;
(q) neither any amendment of the Certificate of Incorporation Seller, nor any Acquired Subsidiary, has canceled, compromised, waived, or By-Laws of VGX;released any right, debt or claim; and
(r) neither any capital expenditure or execution of Seller, nor any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material Acquired Subsidiary, has committed to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since January 1, 1997, except (i) as disclosed in any Regulatory Reporting Document filed since January 1, 1997 and prior to the date hereof or (ii) as set forth in Section 5.16 of VGX Balance Sheetthe Company Disclosure Schedule, VGX and each neither the Company nor any of its Subsidiaries has conducted (a) incurred any liability which has had a Company Material Adverse Effect, (b) suffered any change in its business Condition which would have a Company Material Adverse Effect, other than changes after the date hereof which affect the banking industry as a whole, (c) failed to operate its business, in all material respects, in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been prudent banking practices or (iid) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in changed any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;accounting practices.
(b) any resignation or termination by VGX or Except as set forth in Section 5.16 of the Company Disclosure Schedule, since December 31, 2000, neither the Company nor any of its Subsidiaries has:
(i) entered into any agreement, commitment or transaction other than in the ordinary course of any executive officer or directorbusiness consistent with prudent banking practices;
(cii) any written notice incurred, assumed or become subject to, whether directly or by way of any actual guaranty or threatened termination by otherwise, any material customerobligations or liabilities (absolute, supplieraccrued, partner, licensor, licensee contingent or other third party having business relations with VGX or any of its Subsidiaries;
(dotherwise) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past prudent banking practices;
(iii) permitted or allowed any of its property or assets to become subject to any mortgage, pledge, lien, security interest, encumbrance, restriction or pursuant to existing contractual commitments), including the making charge of any loan to such person kind (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness and consistent with prudent banking practices;
(kiv) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Planconsistent with prudent banking practices, and (iii) issuances upon exercise canceled any debts, waived any claims or rights, or sold, transferred or otherwise disposed of VGX Warrants any its properties or other rights disclosed pursuant to Section 2.2assets;
(pv) except for regular salary increases granted in the ordinary course of business consistent with prior practice, granted any splitincrease in compensation or paid or agreed to pay or accrue any bonus, combination percentage compensation, service award, severance payment or reclassification like benefit to or for the credit of any director, officer, employee or agent, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended or terminated any Company Benefit Plan;
(vi) directly or indirectly declared, set aside or paid any dividend or made any distribution in respect with capital stock, or redeemed, purchased or otherwise acquired any shares of VGX Capital Stock or the its capital stock of any or other of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect ofsecurities, in lieu of or in substitution except for any VGX Capital Stock or dividends paid to the capital stock of any of Company by its Subsidiaries;
(qvii) organized or acquired any amendment capital stock or any other equity securities or acquired any equity or ownership interest in any Person (except for settlement of indebtedness, foreclosure or the Certificate exercise of Incorporation creditors' remedies or By-Laws in a fiduciary capacity, the ownership of VGXwhich does not expose the Company or its Subsidiaries to any liability from the business, operations or liabilities of such Person);
(rviii) except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any capital expenditure transaction, or execution of entered into, modified or amended any lease by VGX involving remaining payments contract or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXcommitment, except other than in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel business and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personconsistent with prudent banking practices; or
(wix) agreed, whether in writing or otherwise, to take any agreement by VGX or action the performance of which would change the representations contained in this Section 5.16(b) in the future so that any of its Subsidiaries to do any such representation would not be true in all material respects as of the foregoingClosing.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since December 31, 2005 to the date of VGX Balance Sheethereof, VGX the Seller and each of its the Seller Subsidiaries has have conducted its business their businesses only in the ordinary course and in a manner consistent with past practice and, since such dateDecember 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2005, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any Material Adverse Effect on VGX on any change in the financial condition, results of its Subsidiaries;
(b) any resignation operations or termination by VGX business of the Seller or any of its the Seller Subsidiaries of any executive officer which has had, or director;
would be reasonably expected to have, a Seller Material Adverse Effect, (c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any assets of the Seller or any of the material assetsSeller Subsidiaries which has had, or any material portion of the assetswould be reasonably expected to have, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
a Seller Material Adverse Effect, (eiii) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries the Seller in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(jiv) any material revaluation by VGX or any of its Subsidiaries the Seller of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than assets in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase respect, (v) except for distributions made on the Seller Common Stock described in Section 2.8(a) of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) the Seller Disclosure Schedule and as permitted by Section 4.2(b), below, any declaration, setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital shares of Seller Common Stock or any capital stock of its Subsidiaries;
(n) any purchaseredemption, redemption repurchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries the securities of any indebtedness Seller Subsidiary, (vi) any increase in the wages, salaries, bonuses, compensation, pension or waiver other fringe benefits or perquisites payable to any executive officer, employee or director of the Seller or any Seller Subsidiary or any grant of any rights material to VGXseverance or termination pay, except in the ordinary course of business;business consistent with past practices, (vii) any strike, work stoppage, slow-down or other labor disturbance, (viii) the execution of any collective bargaining agreement or other Contract with a labor union or organization, or (ix) any union organizing activities.
(tb) any indebtedness incurred To the Seller’s Knowledge, no third Person has used, with or guaranteed by VGX without permission, the corporate name, trademarks, trade names, service marks, logos, symbols or similar intellectual property of the Seller or any Seller Subsidiary in connection with the marketing, advertising, promotion or sale of its Subsidiaries for borrowed money such third Person’s products or services. Neither the Seller nor any commitment Seller Subsidiary is a party to borrow money entered into by VGX any joint marketing or other affinity marketing program with any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other third Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since June 30, 2006 to the date of VGX Balance Sheetthis Agreement, VGX the Seller and each of its the Seller Subsidiaries has have conducted its business their businesses only in the ordinary course and in a manner consistent with past practice and, since such dateJune 30, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2006, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any change in the financial condition, results of operations or business of the Seller and any of the Seller Subsidiaries which has had a Seller Material Adverse Effect on VGX on any of its Subsidiaries;
Effect, (b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (whether with respect to any assets of the Seller or not covered by insurance) materially and adversely affecting any of the material assetsSeller Subsidiaries which has had a Seller Material Adverse Effect, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(eiii) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries the Seller in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(jiv) any material revaluation by VGX or any of its Subsidiaries the Seller of any of its assetsassets in any material respect, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(kv) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, declaration setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital shares of Seller Common Stock or any capital stock of its Subsidiaries;
(n) any purchaseredemption, redemption purchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries the securities of any indebtedness Seller Subsidiary, (vi) any increase in the wages, salaries, bonuses, compensation, pension, or waiver other fringe benefits payable to any executive officer, employee, or director or any grant of any rights material to VGXseverance or termination pay, except in the ordinary course of business;business consistent with past practices, (vii) any strike, work stoppage, slow down or other labor disturbance, or (viii) the execution of any collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, or (ix) any union organizing activities.
(tb) Neither Seller nor any indebtedness incurred Seller Subsidiary is a party to any joint marketing or guaranteed other affinity marketing program with a third party.
(c) The Seller and Seller Subsidiaries own, or are validly licensed or otherwise have the enforceable right to use, in each case free and clear of all Liens except Permitted Liens, all Intellectual Property used in the conduct of the business of the Seller and Seller Subsidiaries as currently conducted that is material to the business of the Seller and the Seller Subsidiaries taken as a whole (the “Seller Intellectual Property”). Neither the Seller nor any Seller Subsidiary has entered into any agreements granting sole or exclusive right to any material Intellectual Property. Except as would not reasonably be expected to have a Seller Material Adverse Effect, all patents and patent applications, trademark registration and applications for registration and domain named owned by VGX the Seller or Seller Subsidiaries are subsisting and unexpired and, to Seller’s Knowledge, valid. No claims are pending or, to Seller’s Knowledge, threatened, (a) challenging the ownership, enforceability, validity, or use by the Seller or any Seller Subsidiary of its Subsidiaries for borrowed money any Seller Intellectual Property, or (b) alleging that the Seller or any commitment Seller Subsidiary is violating, misappropriating or infringing or otherwise adversely affecting the rights of any person with regard to borrow money entered into by VGX any Seller Intellectual Property or the use of any Seller Intellectual Property (including any claim that the Seller or any Seller Subsidiary should license or refrain from using any Intellectual Property of its Subsidiaries in excess a third party) other than claims that would not be reasonably expect to have a Seller Material Adverse Effect. Except as would not reasonably be expect to have a Seller Material Adverse Effect, to the Knowledge of $500,000Seller, (i) no Person is infringing, violating, or any loans made or agreed to be made by VGX misappropriating the rights of the Seller or any Seller Subsidiary with respect to any Seller Intellectual Property, and (ii) the operation of its Subsidiariesthe business of the Seller and the Seller Subsidiaries as currently conducted does not violate, other than reasonable travel and entertainment expense advances and trade accounts receivable in misappropriate, or infringe the ordinary course Intellectual Property of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
. Except as would not reasonably be expected to have a Seller Material Adverse Affect, the Seller and the Seller Subsidiaries take and have taken commercially reasonable actions to maintain and preserve the material Intellectual Property used in the conduct of their business as currently conducted. The Seller and the Seller Subsidiaries are in actual possession of or have necessary control over the source code and object code for all material software that they own or propose to own (w) the “Owned Software”). None of the Owned Software is subject to any agreement by VGX contract or other obligation that has or would require the Seller or a Seller Subsidiary to divulge to any third party any source code or trade secret that is part of Owned Software, to license Owned Software for the purpose of making derivative works, or to redistribute Owned Software to any third party at no or minimal charge. Except as would not be material to the business of the Seller and the Seller Subsidiaries taken as a whole, the Seller and the Seller Subsidiaries maintain policies and procedures regarding data security and privacy that are commercially reasonable and, in any event, in compliance with all their obligations to their customers and under applicable laws, statutes, standards, ordinances, codes, rules, and regulations (the “Legal Requirements”). Except as would not be material to the business of the Seller and the Seller Subsidiaries taken as a whole, there have been no security breaches relating to, violations of any security policy regarding or any unauthorized access or unauthorized use of its Subsidiaries to do any data used in the business of the foregoingSeller and the Seller Subsidiaries. To the Seller’s Knowledge, there have been no events of series of events involving the Seller or Seller Subsidiaries that have or would reasonably be expected to trigger a consumer personal information privacy breach reporting requirement. Except as would not be material to the business of the Seller and the Seller Subsidiaries taken as a whole, the use and dissemination of any and all data and information concerning individuals by their businesses is in compliance with all applicable privacy policies, terms of use, customer agreements, and Legal Requirements. The transactions contemplated to be consummated hereunder as of the Closing Date will not violate any privacy policy, terms of the use, customer agreements or Legal Requirements relating to the use, dissemination or transfer of any such data or information.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since January 1, 1997, except (i) as disclosed in any Regulatory Reporting Document filed since January 1, 1997 and prior to the date hereof or (ii) as set forth in Section 5.16 of VGX Balance Sheetthe Company Disclosure Schedule, VGX and each neither the Company nor any of its Subsidiaries has conducted (A) incurred any liability which has had a Company Material Adverse Effect, (B) suffered any change in its business Condition which would have a Company Material Adverse Effect, other than changes after the date hereof which affect the banking industry as a whole, (C) failed to operate its business, in all material respects, in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been prudent banking practices or (iiD) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in changed any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;accounting practices.
(b) any resignation or termination by VGX or Except as set forth in Section 5.16 of the Company Disclosure Schedule, since December 31, 2000, neither the Company nor any of its Subsidiaries has:
(i) entered into any agreement, commitment or transaction other than in the ordinary course of any executive officer or directorbusiness consistent with prudent banking practices;
(cii) any written notice incurred, assumed or become subject to, whether directly or by way of any actual guaranty or threatened termination by otherwise, any material customerobligations or liabilities (absolute, supplieraccrued, partner, licensor, licensee contingent or other third party having business relations with VGX or any of its Subsidiaries;
(dotherwise) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past prudent banking practices;
(iii) permitted or allowed any of its property or assets to become subject to any mortgage, pledge, lien, security interest, encumbrance, restriction or pursuant to existing contractual commitments), including the making charge of any loan to such person kind (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness and consistent with prudent banking practices;
(kiv) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Planconsistent with prudent banking practices, and (iii) issuances upon exercise canceled any debts, waived any claims or rights, or sold, transferred or otherwise disposed of VGX Warrants any its properties or other rights disclosed pursuant to Section 2.2assets;
(pv) except for regular salary increases granted in the ordinary course of business consistent with prior practice, granted any splitincrease in compensation or paid or agreed to pay or accrue any bonus, combination percentage compensation, service award, severance payment or reclassification like benefit to or for the credit of any director, officer, employee or agent, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended or terminated any Company Benefit Plan;
(vi) directly or indirectly declared, set aside or paid any dividend or made any distribution in respect with capital stock, or redeemed, purchased or otherwise acquired any shares of VGX Capital Stock or the its capital stock of any or other of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect ofsecurities, in lieu of or in substitution except for any VGX Capital Stock or dividends paid to the capital stock of any of Company by its Subsidiaries;
(qvii) organized or acquired any amendment capital stock or any other equity securities or acquired any equity or ownership interest in any Person (except for settlement of indebtedness, foreclosure or the Certificate exercise of Incorporation creditors' remedies or By-Laws in a fiduciary capacity, the ownership of VGXwhich does not expose the Company or its Subsidiaries to any liability from the business, operations or liabilities of such Person);
(rviii) except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any capital expenditure transaction, or execution of entered into, modified or amended any lease by VGX involving remaining payments contract or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXcommitment, except other than in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel business and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personconsistent with prudent banking practices; or
(wix) agreed, whether in writing or otherwise, to take any agreement by VGX or action the performance of which would change the representations contained in this Section 5.16(b) in the future so that any of its Subsidiaries to do any such representation would not be true in all material respects as of the foregoingClosing.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as otherwise contemplated by this Agreement, during the period from December 31, 2016 to the date of VGX Balance Sheetthis Agreement, VGX the Sellers and each of its the Foreign Subsidiaries has have conducted its business their respective businesses in the ordinary course of business consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any change, condition, circumstance, event or development that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) with respect to any resignation Foreign Subsidiary or termination by VGX the Sellers in respect of the ownership of the Purchased Assets or the operation of the Business: any change in material accounting or Tax accounting method, any adoption or change of any Tax election, any settlement or compromise of any claim, notice, audit report or assessment in respect of material Taxes, any filing of any amended Tax Return or other Tax Return, any entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to Taxes, or any extension or waiver of its Subsidiaries the statute of limitations period applicable to any executive officer material Tax claim or directorassessment;
(c) any written notice adoption, modification or proposal of any actual or threatened termination by any material customerchange in the articles of incorporation, supplier, partner, licensor, licensee bylaws or other third party having business relations with VGX organizational documents of any Seller or any of its SubsidiariesForeign Subsidiary;
(d) any damage(i) acquisition by any Seller or Foreign Subsidiary (by merger, destruction consolidation or loss acquisition of equity interests or assets or otherwise) of any corporation, limited liability company, partnership or other Person or division thereof, (whether ii) any investment by any Seller or not covered by insurance) materially and adversely affecting Foreign Subsidiary in any of the material assetsother Person, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(eiii) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment encumbrance or exclusive license other disposition of any properties or assets, tangible properties, securities, rights or intangible (including, without limitation, Intellectual Property)interests of the Sellers or any Foreign Subsidiary, or any encumbrance (excluding Permitted Liens) expiration or lapse of any properties or assets, tangible or intangible (including, without limitation, Owned Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(ke) except in connection with the execution and delivery of the Credit Facilities, any establishment, termination merger or amendment consolidation of any VGX Employee PlanSeller or Foreign Subsidiary with any other Person, adoption of a plan of complete or partial liquidation of the Sellers or any Foreign Subsidiary, or authorization or undertaking of a dissolution, consolidation, restructuring, recapitalization or other reorganization of any Seller or Foreign Subsidiary;
(lf) any material increase of severance loans, or termination pay advances made by any Seller or Foreign Subsidiary to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockPerson, other than (i) the issuance, delivery and/or sale extensions of shares of VGX Common Stock pursuant credit to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except customers in the ordinary course of business;
(tg) any indebtedness incurred capital expenditures by any Seller or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries Foreign Subsidiary in excess of $500,000150,000.00;
(h) to the actual knowledge of the Sellers, any amendment or modification in any material respect, or any loans made termination or agreed to be made by VGX cancellation of, any Material Contract, or entrance into any of its Subsidiaries, contract that would constitute a Material Contract (other than reasonable travel (x) bidding for and entertainment expense advances and trade accounts receivable entering into Material Contracts with customers or suppliers in the ordinary course of businessbusiness consistent with past practice, (y) terminations of Material Contracts as a result of the expiration of the term of such Material Contracts and (z) renewals of Material Contracts in the ordinary course of business consistent with past practice);
(ui) except in the ordinary course of business consistent with past practice or as required by applicable Law or the terms of any commencement Benefit Plan, any (i) increase, acceleration of Legal Proceedings or provision for additional compensation, benefits (fringe or otherwise) or other rights to any employee, (ii) payment by VGX any Seller or Foreign Subsidiary to any Person of any bonus, success fee or other similar payment in connection with the sale of the Shares or the other Transactions, except as would be a Sellers’ Expense hereunder, (iii) grant, or amendment or modification of any grant or agreement to grant, any severance, termination, retention or similar payment to any employee, (iv) loan or advance of any money or other property to any employee, (v) grant by any Seller or Foreign Subsidiary or any of its Subsidiariestheir Affiliates of any equity or equity-based awards, or (vi) establishment, adoption, entry into, amendment or termination of any Benefit Plan, collective bargaining agreement or other labor agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date hereof;
(vj) any acquisition hiring, or disposition engagement of, by any Seller or Foreign Subsidiary, or offer of employment or engagement made by any Seller or Foreign Subsidiary to, any Person whose total annual compensation exceeds or is expected to exceed $200,000, or termination of the employment other than for cause of any equity interest employee who is an officer or key employee;
(k) acceleration or alteration in any other Personmaterial respect any of the Seller’s or any Foreign Subsidiary’s practices and policies relating to the rate of collection of accounts receivable or payment of accounts payable, or the failure by any Seller or Foreign Subsidiary to pay or satisfy any Liabilities when due and payable, except for such Liabilities being contested in good faith by the applicable Seller or Foreign Subsidiary as of the date hereof; or
(wl) any agreement by VGX or any of its Subsidiaries commitment to do any of the foregoing.
Appears in 1 contract
Samples: Asset and Securities Purchase Agreement (CSS Industries Inc)
Absence of Certain Changes or Events. Since (a) Except as set forth on Schedule 6.11(a) of the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice andSeller ---------------- Disclosure Schedule, since such dateDecember 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2006, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any a Seller Material Adverse Effect on VGX on any of its Subsidiaries;Effect.
(b) any resignation or termination by VGX Except as set forth in Schedule 6.11(b) of the Seller ---------------- Disclosure Schedule, since April 2, 2007 to the date of this Agreement, and to the Knowledge of the Seller during the period between December 31, 2006 and April 1, 2007, the Seller has conducted and did conduct the Gestiva Business in the Ordinary Course of Business, and the Seller has not, with respect to the Gestiva Business or any of its Subsidiaries the Purchased Assets:
(i) subjected any of the Purchased Assets to any executive officer Encumbrances other than Permitted Encumbrances (subject to Section 6.12(a)); ---------------
(ii) sold, transferred, leased, subleased, licensed, sublicensed or directorotherwise disposed of, to any third party, any Purchased Assets or assets used in or necessary for the conduct of the Gestiva Business;
(ciii) entered into any written notice Assumed Contract or accelerated, cancelled, modified or terminated any Assumed Contract except in connection with any renewal thereof in the Ordinary Course of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its SubsidiariesBusiness;
(div) surrendered, revoked or otherwise terminated any Gestiva Governmental Permits, except in connection with any renewal or reissuance thereof;
(v) incurred Assumed Liabilities, other than in the Ordinary Course of Business;
(vi) waived, released or assigned any rights, which rights, but for such waiver, release or assignment, would have been classified as Purchased Assets, other than in the Ordinary Course of Business;
(vii) experienced any damage, destruction or casualty loss (whether or not covered by insurance) materially with respect to any Purchased Asset other than as a result of ordinary wear and adversely affecting any of the material assetstear, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiarieswhere applicable;
(eviii) any commencement of Legal Proceedings against VGX delayed or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in postponed the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other PersonAssumed Liability; or
(wix) with respect to the Purchased Assets or the Gestiva Business, made any election or change to any election in respect to Taxes, adopted or changed any accounting method in respect to Taxes, entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement by VGX or settled or compromised on any claim, notice, audit report or assessment in respect of its Subsidiaries Taxes, consented to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, changed any annual Tax accounting period, filed any amended Tax Return, or surrendered any right to claim a Tax refund; or
(x) agreed, whether in writing or otherwise, to do any of the foregoing, except as expressly contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Absence of Certain Changes or Events. Since Except as otherwise set forth on the Schedule 5.16 since the date of VGX the Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) There has been no event, occurrence, or fact, or any series of events, occurrences, or facts that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation Neither the Seller, INXL nor INXH has amended or termination by VGX or any of changed its Subsidiaries of any executive officer or directorCharter Documents;
(c) Neither the Seller, INXL nor INXH has declared, set aside or paid any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee dividend or other third party having business relations distribution (whether in cash, stock or property) with VGX respect to any Equity Securities or any of its Subsidiariesother security;
(d) Neither the Seller, INXL nor INXH has split, combined or reclassified any damage, destruction Equity Securities or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsother security, or issued, or authorized for issuance, any material portion of the assets, of VGX Equity Securities or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiariesother security;
(e) Neither the Seller, INXL nor INXH has altered any commencement term of Legal Proceedings against VGX any outstanding Equity Securities or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingother security;
(f) any material increase in Neither the Seller, INXL nor INXH has: (i) increased or modified the compensation, including salary, bonuses, royalty, commissions or deferred compensation or benefits payable or to become payable by Seller,INXL or INXH to any officer of its current or director former directors, officers, key employees, contractors or consultants; (ii) increased or modified any Benefit Plan, payment or arrangement made to, for or with any current or former directors, officers, employees, contractors or consultants of VGX Seller, INXL or INXH; (other iii) entered into any employment, severance or termination agreement; or (iv) entered into any agreement or arrangement with any of its current or former directors, officers, employees, contractors or consultants providing any form of signing or stay on bonus or compensation;
(g) Other than increases in each case in connection with general performance reviews and annual salary increases in each case the sale of inventory in the ordinary course of business and consistent with past practicesbusiness, neither the Seller, INXL nor INXH has sold, leased, transferred or pursuant to existing contractual commitments)assigned any of its Assets, including the making INXL Assets or any assets of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")INXH;
(h) Except as may otherwise be set forth on Schedule 5.16, neither the Seller,INXL or INXH has incurred, assumed or guaranteed any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregateIndebtedness;
(i) Neither the Seller, INXL nor INXH has created or assumed any material change by VGX Lien on any Asset or any of its Subsidiaries in its accounting methods, principles or practicesINXL Assets, except as required by concurrent changes in US GAAPfor Permitted Liens;
(j) Neither the Seller, INXL nor INXH has made any material revaluation by VGX loan, advance or capital contribution to, or investment in, any of its Subsidiaries of Person;
(k) Neither the Seller, INXL nor INXH has entered into any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable Contract other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other Other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business (i) no Contract has been terminated or cancelled or not renewed; the Seller, LD and Representing party have not been informed of any potential Contract termination, cancellation or non-renewal(ii) no rights under the VGX Option Plan, any Contract have been waived or accelerated; and (iii) issuances upon exercise of VGX Warrants or other rights disclosed no Contract that would be required to be listed as a Contract pursuant to Section 2.25.17 if such Contract were in effect on the Closing Date, has been terminated or cancelled;
(m) Neither the Seller, INXL nor INXH has sold, transferred, pledged or assigned any of its Intellectual Property;
(n) There has not been any labor dispute or any activity or proceeding by a labor union or representative thereof to organize any employees of the Seller, INXH or INXL;
(o) There has not been any violation of or conflict with any Law to which the Business or Assets of Seller, INXL Assets or assets of INXH are subject;
(p) None of the Seller, LD, INX, INXHL nor the Representing Party have agreed or entered into any split, combination arrangement to take any action which will result in any representation or reclassification of any of VGX Capital Stock warranty set forth in this Article V being untrue or incorrect on the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its SubsidiariesClosing Date;
(q) There has not been any amendment material damage, destruction or loss with respect to the material Assets of the Certificate Sellers, material assets of Incorporation INXH or By-Laws of VGXmaterial INXL Assets, whether or not covered by insurance;
(r) Neither the Seller, INXL, INXH, LD nor the Representing Party have made any capital expenditure change in accounting policies or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregatepractices;
(s) Neither of the Seller, INXL, INXH nor the Representing Party have made any cancellation by VGX Tax election, changed its method of Tax accounting or settled any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of businessclaim for Taxes;
(t) Except as may be set forth on Schedule 5.16, neither the Seller, INXL, INXH nor the Representing Party have settled any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;Action; and
(u) any commencement of Legal Proceedings by VGX Neither the Seller, INXL nor the Representing Party have agreed, whether in writing or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Youngevity International, Inc.)
Absence of Certain Changes or Events. Since Except as disclosed in the date of VGX Balance SheetSeller SEC Documents or on the Seller Disclosure Schedule, VGX and each of its Subsidiaries since August 23, 2005, Seller has conducted its business the Business in the ordinary course consistent with past practice Ordinary Course of Business and, since such datewithout limiting the generality of the foregoing, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvenot:
(a) suffered any Material Adverse Effect on VGX on any of its SubsidiariesChange relating to the Business;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) suffered any damage, destruction or loss (loss, whether or not covered by insurance, having a Material Adverse Effect relating to the Business;
(c) materially and adversely affecting effected any acquisition, sale or transfer of any material asset of Seller other than in the material assets, Ordinary Course of Business;
(d) effected any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Seller or any material portion revaluation by Seller of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting assets related to the business of VGX or any of its Subsidiaries;Business.
(e) any commencement declared, set aside, or paid a dividend or other distribution with respect to the shares of Legal Proceedings against VGX Seller, or directly or indirectly redeemed, purchased or otherwise acquired any of its Subsidiaries, and no Person has notified VGX or any shares of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingcapital stock;
(f) entered into any Contract, other than in the Ordinary Course of Business, or amended or terminated, or defaulted under, any material Contract to which Seller is a party or by which it is bound;
(g) granted any increase in the compensation payable or to become payable by Seller to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case Seller employees employed in the ordinary course Business, except those occurring in the Ordinary Course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")Business;
(h) granted any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregateSeller Intellectual Property;
(i) incurred any material change by VGX or any liabilities relating to the Business except in the Ordinary Course of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPBusiness;
(j) any material revaluation by VGX permitted or allowed any of its Subsidiaries the Acquired Assets to be subjected to any Encumbrance of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable kind (other than a Permitted Encumbrance) other than in the ordinary course Ordinary Course of businessBusiness;
(k) waived any establishment, termination rights under or amendment of terminated any VGX Employee PlanContract relating to the Business;
(l) with respect to the Business, incurred any material increase contingent liability as guarantor or otherwise with respect to the obligations of severance or termination pay to any employee others, other than in the Ordinary Course of VGX or any Subsidiary of VGX;Business; and
(m) agreed to take any declaration, setting aside action described in this Section 4.11 or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock outside of its Subsidiaries;
(n) any purchase, redemption Ordinary Course of Business or other acquisition by VGX or any of its Subsidiaries which would constitute a breach of any of VGX Capital Stock the representations or any other securities warranties of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock Seller contained in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthis Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX the Gadsden Balance Sheet, VGX and each of its Gadsden and the Gadsden Subsidiaries has have conducted its their business (x) only in the ordinary course consistent with past practice and, since such datepractice, (iy) or engaged transactions related to the Merger, including the issuance to Parent of 1,000 Series A Preferred Units of Gadsden Roseville, LLC, a Delaware limited liability company and Subsidiary of Gadsden (“Roseville”), for a purchase price of $350,000 in accordance with respect to VGX an Amended and its Subsidiaries other than VGXI Restated Limited Liability Company Agreement of Roseville that was entered into among Roseville, Gadsden Realty Investments I, LLC, a wholly owned subsidiary of Gadsden, and Parent, and (z) and there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPa Gadsden Material Adverse Effect;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mii) any declaration, setting aside for payment or payment of any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, to any of VGX Capital Stock or any capital stock the Gadsden Common Shares other than as described in Section 3.1(f) of its Subsidiariesthe Gadsden Disclosure Letter;
(niii) any purchaseamendment of any material term of any outstanding security of Gadsden or any Gadsden Subsidiary;
(iv) any repurchase, redemption or other acquisition by VGX Gadsden or any of its Subsidiaries Gadsden Subsidiary of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any optionsoutstanding shares, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock of, or other securitiesownership interests in, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock Gadsden or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its SubsidiariesGadsden Subsidiary;
(v) any acquisition or disposition of any equity interest change in any other Personmethod or practice of financial accounting by Gadsden or any Gadsden Subsidiary; or
(wvi) any agreement incurrence, assumption or guarantee by VGX Gadsden or any Gadsden Subsidiary of its Subsidiaries any indebtedness for borrowed money other than incurrences, assumptions or guarantees that would have been permitted if incurred subsequent to do any the date of the foregoingthis Agreement in accordance with Section 4.2 and other that mortgage loan, mezzanine loan and related indebtedness with respect to real property investments.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXSheet Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Seller Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation change in accounting methods, principles or termination practices by VGX Seller affecting or any of with respect to the Assets, its Subsidiaries of any executive officer Liabilities or directorthe Business;
(c) any written notice except in the ordinary course of business, revaluation by Seller of any actual of the Assets, including writing down the value of Inventory or threatened termination by any material customer, supplier, partner, licensor, licensee writing off notes or other third party having business relations with VGX or any of its Subsidiariesaccounts receivable;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX Assets or any of its Subsidiariesthe Business;
(e) cancellation of any commencement indebtedness or waiver or release of Legal Proceedings against VGX any material right or any claim of Seller relating to its Subsidiaries, and no Person has notified VGX activities or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingproperties;
(f) declaration, setting aside or payment of dividends or distributions by Seller in respect of Capital Stock or any material increase in the compensation payable to redemption, purchase or other acquisition of any officer or director of VGX Seller’s Capital Stock;
(other than increases in each case in connection with general performance reviews and annual salary increases in each case g) except in the ordinary course of business and consistent with past practicesas described in the Disclosure Schedule, increase in the rate of compensation payable or pursuant to existing contractual commitments)become payable to any consultant or Representative of Seller, including the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such Person, or the addition to, modification of, or contribution to such person (other than advancement of routine travelany Employee Plan, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")arrangement, or practice;
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses material adverse change in the ordinary course of VGX's business employee relations or the business relationships between the employees of any Seller and the management of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregateSeller;
(i) any material change by VGX amendment, cancellation or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries termination of any Contract, Lease, Permit or other instrument relating to the Assets or the Business or entry into or the extension of its assetsany Contract, Lease, Permit or other instrument, including writing down the value of capitalized inventory any employment or writing off notes or accounts receivable other than consulting agreements, in each case which is not in the ordinary course of business;
(kj) any establishment, termination or amendment Encumbrance of any VGX Employee PlanAssets, singly or in the aggregate, other than Permitted Encumbrances;
(lk) any material increase of severance sale, assignment or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries transfer of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockAssets, other than (i) the issuancesales, delivery and/or sale assignments or transfers of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants Inventory or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or Bynon-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except Assets in the ordinary course of business;
(tl) any incurrence of indebtedness incurred or guaranteed by VGX or any of its Subsidiaries Seller for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000Seller, or any loans made or agreed to be made by VGX Seller, or any indebtedness guaranteed by Seller;
(m) incurrence by Seller of its SubsidiariesLiabilities, other than reasonable travel and entertainment expense advances and trade accounts receivable except Liabilities incurred in the ordinary course of business;
(un) payment, discharge or satisfaction of any commencement Liabilities of Legal Proceedings by VGX Seller other than the payment, discharge or any satisfaction in the ordinary course of its Subsidiariesbusiness of Liabilities set forth or reserved for on the Most Recent Balance Sheet or incurred in the ordinary course of business;
(vo) any acquisition capital expenditure in excess of $20,000 by Seller or disposition the incurring of any equity interest obligation by Seller to make any capital expenditure in excess of $20,000;
(p) failure to pay or satisfy when due any other Personmaterial Liability of Seller;
(q) failure of Seller to carry on the Business in the ordinary course, including endeavoring to keep available the services of Seller’s employees, and to preserve the Assets and the Business intact and the goodwill of Seller’s suppliers, customers, distributors and others having business relations with it;
(r) disposition or lapsing of any material Proprietary Rights or any disposition or disclosure to any Person of any material Proprietary Rights not theretofore a matter of public knowledge; or
(ws) any agreement by VGX or any of its Subsidiaries Seller to do any of the foregoingthings described in the preceding clauses (a) through (r) other than as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetDecember 31, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2010, there has not been nor has VGX been asked to act any material adverse change in any management the business, financial condition, operations, results of operations, or stockholder capacity to allow for future prospects of SeaBridge or approveits Subsidiaries. Without limiting the generality of the foregoing, since that date:
(a) each of SeaBridge and SeaBridge Sub has not sold, leased, transferred, or assigned any Material Adverse Effect on VGX on any material assets, tangible or intangible, outside the Ordinary Course of its SubsidiariesBusiness;
(b) each of SeaBridge and SeaBridge Sub has not entered into any resignation agreement, contract, lease, or termination by VGX license (or any series of its Subsidiaries related agreements, contracts, leases and licenses) outside the Ordinary Course of any executive officer or directorBusiness;
(c) no party (including SeaBridge or SeaBridge Sub) has accelerated, terminated, modified, or cancelled any written notice agreement, contract, lease, or license (or series of any actual related agreements, contracts, leases, and licenses) involving more than $10,000 to which SeaBridge or threatened termination SeaBridge Sub is a party or by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or which any of its Subsidiariesthem is bound;
(d) each of SeaBridge and SeaBridge Sub has not imposed any Security Interest upon any of its respective assets, tangible or intangible;
(e) each of SeaBridge and SeaBridge Sub has not made any capital expenditures (or series of related capital expenditures) in excess of $10,000;
(f) except as set forth in Section 4.08(f) of the SeaBridge Disclosure Schedule, each of SeaBridge and SeaBridge Sub has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person;
(g) each of SeaBridge and SeaBridge Sub has not issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations either involving more than $5,000 singly or $10,000 in the aggregate;
(h) each of SeaBridge and SeaBridge Sub has not granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(i) there has been no change made or authorized in the charter or bylaws of SeaBridge or SeaBridge Sub;
(j) (j) each of SeaBridge and SeaBridge Sub has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its respective capital stock, other than transactions identified in Section 4.08(j) of the SeaBridge Disclosure Schedule;
(k) except as set forth in Section 4.08(k) of the SeaBridge Disclosure Schedule, each of
(l) SeaBridge and SeaBridge Sub has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(m) each of SeaBridge and SeaBridge Sub has not experienced any damage, destruction destruction, or loss (whether or not covered by insurance) materially and adversely affecting any of the material to its respective assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially properties and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its SubsidiariesFacilities;
(n) except as set forth in Section 4.08(m) of the SeaBridge Disclosure Schedule, each of SeaBridge and SeaBridge Sub has not made any purchaseloan to, redemption or entered into any other acquisition by VGX or transaction with, any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any optionsrespective directors, warrantsofficers, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsand employees;
(o) each of SeaBridge and SeaBridge Sub has not entered into any issuance employment contract or reservation for issuance by VGX collective bargaining agreement, written or any of its Subsidiaries oforal, or commitment of it to issue or reserve for issuance, or modified the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it terms of any subscriptions, rights, warrants such existing contract or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2agreement;
(p) each of SeaBridge and SeaBridge Sub has not granted any split, combination or reclassification of any of VGX Capital Stock or increase in the capital stock base compensation of any of its Subsidiaries' respective directors or issuance officers or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesother employees outside the Ordinary Course of Business;
(q) each of SeaBridge and SeaBridge Sub has not adopted, amended, modified, or terminated any amendment bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of the Certificate any of Incorporation its respective directors, officers, and employees (or By-Laws of VGXtaken any such action with respect to any other Employee Benefit Plan);
(r) each of SeaBridge and SeaBridge Sub has not made any capital expenditure or execution other change in employment terms for any of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregateits respective directors, officers, and employees;
(s) any cancellation by VGX except as set forth in Section 4.08(r) of the SeaBridge Disclosure Schedule, each of SeaBridge and SeaBridge Sub has not delayed or any postponed the payment of its Subsidiaries accounts payable and other liabilities outside the Ordinary Course of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of businessBusiness;
(t) any indebtedness incurred or guaranteed by VGX or any each of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000SeaBridge and SeaBridge Sub has not cancelled, compromised, waived, or released any loans made right or agreed to be made by VGX claim (or any series of its Subsidiaries, other related rights and claims) either involving more than reasonable travel and entertainment expense advances and trade accounts receivable in $10,000 or outside the ordinary course Ordinary Course of businessBusiness;
(u) each of SeaBridge and SeaBridge Sub has not made or pledged to make any commencement charitable or other capital contribution outside the Ordinary Course of Legal Proceedings by VGX or any of its SubsidiariesBusiness;
(v) any acquisition or disposition of any equity interest in there has not been any other Personoccurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving SeaBridge or SeaBridge Sub; orand
(w) any agreement by VGX or any each of its Subsidiaries SeaBridge and SeaBridge Sub has not committed to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Seabridge Freight Corp.)
Absence of Certain Changes or Events. Since (a) Except as set forth on Section 3.6(a) of the Seller Disclosure Letter, since December 31, 2001, there has not been any change, event, development, effect or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) Except as set forth in Section 3.6(b) of the Seller Disclosure Letter, since December 31, 2001 to the date of VGX Balance Sheetthis Agreement, VGX and each of its Subsidiaries Seller has conducted its business the Business in the ordinary course consistent with past practice andpractice, since such dateand neither Seller nor Seller Sub has, with respect to the Business or any of the Conveyed Assets:
(i) with respect subjected any of the Conveyed Assets to VGX and its Subsidiaries any material Liens, other than VGXI there has not been Permitted Liens;
(ii) sold, transferred, leased, subleased, licensed or otherwise disposed of, to any third party, any material Conveyed Assets (other than Intellectual Property) or other material properties or material assets (other than Intellectual Property) necessary for the conduct of the Business, except for sales of inventory and the disposition of obsolete equipment in the ordinary course of business consistent with past practice;
(iii) sold, licensed or sublicensed or otherwise transferred any rights to any third party under (i) any Conveyed Intellectual Property or (ii) with respect to VGXI onlyany Intellectual Property that is the subject of the Intellectual Property Transfer Agreements or the Intellectual Property License Agreement, other than in the case of Intellectual Property subject to the Knowledge of VGXIntellectual Property License Agreement, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiariestransfers that would be permitted by the Intellectual Property License Agreement;
(biv) entered into any resignation Assumed Contract or termination by VGX accelerated, cancelled, modified or terminated any Assumed Contract, in each case, which is material to the Business, other than in the ordinary course of its Subsidiaries of any executive officer or directorbusiness consistent with past practice;
(cv) assigned any written notice of duties and/or responsibilities to any actual or threatened termination by any material customerOther Employee, supplierwhich employee, partnerbut for such assignment, licensor, licensee or other third party having business relations with VGX or any of its Subsidiarieswould have been classified as an Employee;
(dvi) increased benefits payable to Employees under existing severance, change of control or termination pay policies or employment agreements, or increased compensation, bonus or other benefits payable to Employees, other than in accordance with normal, recurring compensation increases and as required under any Seller Benefit Plans;
(vii) surrendered, revoked or otherwise terminated any Required Permit, except in connection with any renewal or reissuance of any such Required Permit;
(viii) incurred Assumed Liabilities, other than in the ordinary course of business consistent with past practice;
(ix) waived, released or assigned any material rights, which rights, but for such waiver, release or assignment, would have been classified as Conveyed Assets, other than in the ordinary course of business consistent with past practice;
(x) experienced any material damage, destruction or casualty loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or with respect to any material portion Conveyed Asset other than as a result of the assets, of VGX or any of its Subsidiaries or materially ordinary wear and adversely affecting the business of VGX or any of its Subsidiariestear;
(exi) delayed or postponed the payment of any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in Assumed Liability outside the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personpractice; or
(wxii) any agreement by VGX agreed, whether in writing or any of its Subsidiaries otherwise, to do any of the foregoing, except as expressly contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Amgen Inc)
Absence of Certain Changes or Events. Since Except as set forth in Schedule 4.14, since March 31, 2003 there has not been any:
(a) failure to operate the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiariespractice;
(b) any resignation except in the ordinary course of business consistent with past practice, material sale, assignment, license, transfer or termination by VGX or encumbrance of any of its Subsidiaries of any executive officer the Purchased Assets, tangible or directorintangible, singly or in the aggregate;
(c) any written notice new contracts relating to the business of any actual Solutions or threatened termination by any material customerthe Purchased Assets, supplieror extensions, partnermodifications, licensorterminations or renewals thereof, licensee except where entered into, modified or other third party having terminated in the ordinary course of business relations consistent with VGX or any of its Subsidiariespast practice;
(d) except in the ordinary course of business consistent with past practice, disposition or lapsing of any of any proprietary rights in the Intellectual Property constituting Purchased Assets, in whole or in part;
(e) to Seller's knowledge, disclosure by Seller or any employee of Seller of any trade secret (including, without limitation, process and know-how) relating exclusively to the business of Solutions to any Person not an employee or not otherwise subject to a non-disclosure agreement or fiduciary obligation of confidentiality;
(f) material change in accounting methods or practices by Seller relating to the business of Solutions or the Purchased Assets;
(g) material revaluation by Seller of any of the Purchased Assets or any portion thereof, including writing off or establishing reserves with respect to inventory, notes or accounts receivable;
(h) physical damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business Purchased Assets or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregateSolutions;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease or any incurring of liability therefor by VGX Seller relating to the business of Solutions or the Purchased Assets, involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 100,000 in the aggregate;
(sj) failure to pay when due any obligation of Seller relating to the business of Solutions or the Purchased Assets, other than obligations that are not material to the business of Solutions or the Purchased Assets;
(k) cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material of substantial value relating to VGXthe Purchased Assets or the business of Solutions by Seller, except (i) in the ordinary course of businessbusiness consistent with past practice (ii) indebtedness or rights that are not material to the business of Solutions or the Purchased Assets;
(tl) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries Seller for borrowed money money, or any commitment to borrow money entered into by VGX Seller, in connection with the business of Solutions or relating to the Purchased Assets, except for indebtedness that is not material to the business of Solutions or the Purchased Assets;
(m) payment, discharge or satisfaction of any liabilities of its Subsidiaries in excess Seller relating to the business of $500,000, Solutions or any loans made or agreed to be made by VGX or any of its Subsidiaries, the Purchased Assets other than reasonable travel and entertainment expense advances and trade accounts receivable the payment, discharge or satisfaction of liabilities as they come due or otherwise in the ordinary course of business;
(u) any commencement business consistent with past practice of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personliabilities; or
(wn) any agreement by VGX Seller directly or any of its Subsidiaries indirectly to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as disclosed in the WABCO SEC Documents filed prior to the date of VGX Balance Sheetthis Agreement, VGX since December 31, 1998, (A) WABCO and each of its Subsidiaries has conducted its business have not incurred any material liability or obligation (indirect, direct or contingent), or entered into any material oral or written agreement or other transaction, that is not in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been of business or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any that would have a Material Adverse Effect on VGX on any of its Subsidiaries;
WABCO, (bB) any resignation or termination by VGX or any of WABCO and its Subsidiaries of have not sustained any executive officer loss or director;
(c) any written notice of any actual interference with their business or threatened termination by any material customerproperties from fire, supplierflood, partnerwindstorm, licensor, licensee accident or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss calamity (whether or not covered by insurance) materially and adversely affecting any of the material assets, that has had or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence would have a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX OptionsMaterial Adverse Effect on WABCO, (iiC) the granting of options to purchase VGX Common Stock there has been no change in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of WABCO and no dividend or distribution of any kind declared, paid or made by WABCO on any class of its Subsidiaries' or issuance or authorization stock, except for the regular quarterly dividend of issuance not more than $.01 per share of any other securities in respect ofWABCO Common Stock, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(qD) there has not been (y) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease granting by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX WABCO or any of its Subsidiaries to do any executive officer or material modification of any severance or termination benefits or (z) any entry by WABCO or any of its Subsidiaries into or material modification of any employment, severance or termination agreement with any such executive officer, (E) WABCO and its Subsidiaries have not prepared or filed any Tax Return (as defined in Section 2.9) inconsistent in any material respect with past practice or, on any such Tax Return, taken any position, made any election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, and (F) there has been no other event causing a Material Adverse Effect on WABCO, nor any development that would, individually or in the foregoingaggregate, have a Material Adverse Effect on WABCO. Set forth in Section 2.7 of the WABCO Disclosure Letter is a description of any material changes, between December 31, 1998 and the date of this Agreement (excluding any intervening fluctuations between such dates), to the amount and terms of the indebtedness of WABCO and its Subsidiaries as described in WABCO's Annual Report on Form 10-K for the year ended December 31, 1998, as filed with the SEC (other than any changes in, or the incurrence of, indebtedness of WABCO or any of its Subsidiaries with a principal amount not in excess of $1,000,000).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Motivepower Industries Inc)
Absence of Certain Changes or Events. Since Except as disclosed in ------------------------------------ the Seller SEC Reports filed prior to the date of VGX Balance Sheetthis Agreement or set forth in Section 2.8 of the Seller Disclosure Schedule and except for the transactions contemplated by this Agreement, VGX since September 30, 1996 to the date of this Agreement, the Seller and each of its the Seller Subsidiaries has have conducted its business their businesses only in the ordinary course and in a manner consistent with past practice and, since such dateSeptember 30, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1996, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any change in the financial condition, results of operations or business of the Seller and any of the Seller Subsidiaries having a Material Adverse Effect on VGX on any of its the Seller or the Seller Subsidiaries;
, taken as a whole, (b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dii) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any assets of the Seller or any of the material assetsSeller Subsidiaries having a Material Adverse Effect on Seller and the Seller Subsidiaries, or any material portion of the assetstaken as a whole, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(eiii) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries the Seller in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(jiv) any material revaluation by VGX or any of its Subsidiaries the Seller of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than assets in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase respect, (v) except for repurchases pursuant to the Seller's Common Stock Repurchase Program or for regular quarterly cash dividends on Seller Common Stock with usual record and payment dates, to the date of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) this Agreement, any declaration, setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital shares of Seller Common Stock or any capital stock of its Subsidiaries;
(n) any purchaseredemption, redemption purchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries the securities of any indebtedness Seller Subsidiary, (vi) any strike, work stoppage, slow-down or waiver other labor disturbance suffered by the Seller or the Seller Subsidiaries, (vii) any collective bargaining agreement, contract or other agreement or understanding with a labor union or organization to which the Seller or the Seller Subsidiaries have been a party, (viii) any union organizing activities relating to employees of the Seller or the Seller Subsidiaries, or (ix) any rights material to VGX, except increase in the ordinary course wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any executive officer, employee or director, any grant of business;
(t) severance or termination pay, any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money contract entered into by VGX to make or grant any of its Subsidiaries in excess of $500,000severance or termination pay, or any loans made or agreed to be made by VGX or any of its Subsidiaries, bonus paid other than reasonable travel and entertainment expense advances and trade accounts receivable year-end bonuses for fiscal 1997 as listed in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any Section 2.8 of the foregoingSeller Disclosure Schedule.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries Sheet Date the Company has conducted its business in the ordinary course of business (consistent with past practice and, since such date, (ipractice) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Event that, individually or in the aggregate, has had or would reasonably be expected to have, a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation material change in its methods of accounting or termination accounting practices (including with respect to revenue recognition), except in so far as was required by VGX or any of its Subsidiaries of any executive officer or directora change in GAAP;
(c) any written notice of any actual amendment or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesmodification to the Organizational Documents;
(d) payment of any damagematerial bonuses or severance, or material increases in salaries or other compensation or benefits, by the Company to any of its directors, officers, current or former employees or current or former independent contractors, other than increases, bonus payments or commission payments made in the ordinary course of business;
(e) sale, acquisition, assignment, transfer, conveyance or abandonment of any Company Intellectual Property owned by the Company or any other asset or properties of the Company (other than inventory, product or obsolete assets, the grant of non-exclusive licenses of Company Intellectual Property to customers in the ordinary course of business (consistent with past practice) and sale of products to customers in the ordinary course of business (consistent with past practice));
(f) damage to or destruction or loss (of any material asset or property of the Company, whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) incurrence, creation, guarantee or assumption of any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")Indebtedness;
(h) any dividend, distribution, sale, leaseredemption, licenserepurchase, assignment recapitalization, reclassification, issuance, split, combination, subdivision or exclusive license of any properties other similar transaction involving the Company Shares or assets, tangible or intangible (including, without limitation, Intellectual Property)securities convertible into, or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than options with respect to, warrants to tangible assets transactions involving less than $500,000 in any one case purchase, or $1,000,000 in rights to subscribe for, the aggregateCompany Shares;
(i) amendment or termination of any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as existing Employee Plan (other than an amendment required by concurrent changes in US GAAP;
(j) any material revaluation by VGX Law), or any of its Subsidiaries adoption of any of its assetsnew Employee Plan, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(kj) any establishment, termination capital expenditures or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockcommitments therefor, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice);
(pk) adoption of a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or merger or consolidation with any split, combination other Person or reclassification other acquisition of any of VGX Capital Stock business or the capital stock substantial assets of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its SubsidiariesPerson;
(ql) failure to pay in a timely manner any amendment of the Certificate of Incorporation or By-Laws of VGXTaxes as they became due and payable;
(rm) any capital expenditure theft, damage, destruction or execution of any lease by VGX involving remaining payments casualty loss, or obligations Claim therefor, in excess of $500,000 individually or $1,000,000 100,000 in the aggregateaggregate to any of the Company’s assets, whether or not covered by insurance;
(sn) making of, alteration of, modification of, change of, termination of or revocation of any cancellation by VGX election relating to Taxes, any annual accounting period or any method of its Subsidiaries accounting for Tax purposes, agreement to any audit assessment by any Tax authority, entry into any closing agreement, settlement of any indebtedness Tax claim or assessment, surrendering of any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any rights material to VGXTax claim or assessment, except or filing of any amended Tax Return, which, in each case, would materially affect the ordinary course Tax position of business;the Company or materially decrease any Tax attribute of the Company after Closing; and
(to) any indebtedness incurred authorization or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Squarespace, Inc.)
Absence of Certain Changes or Events. Since the date of VGX December Balance SheetSheet Date, VGX and each of its Subsidiaries has conducted its business except as set forth in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXDisclosure Statement, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect change in the Company's or its Subsidiary's financial condition, assets, liabilities, working capital, reserves, earnings or business, including client losses, except for changes in the ordinary course of business which changes, individually or in the aggregate, have not had a material adverse effect on VGX on any of the Company or its SubsidiariesSubsidiary;
(b) any resignation (i) increase in the compensation payable or termination to become payable by VGX the Company or its Subsidiary to any of its Subsidiaries officers, employees or sales representatives whose total compensation for services rendered to the Company or its Subsidiary is currently at an annual rate of $30,000 or more (collectively, "Personnel") except in the ordinary course of business, (ii) bonus, incentive compensation, service award or other like benefit granted, made or accrued, contingently or otherwise, for or to the credit of any executive officer of the Personnel except in the ordinary course of business, none of which to any one person exceeds $25,000, except for gifts or directorbonuses to Personnel from the Company or its Subsidiary in anticipation of the transactions contemplated hereby, (iii) employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by the Company or its Subsidiary for any Personnel except pursuant to the existing plans and arrangements described in the Disclosure Schedule or (iv) new employment agreement to which the Company or its Subsidiary is a party;
(c) any written notice addition to or modification of any actual the employee benefit plans, arrangements or threatened termination by any material customer, supplier, partner, licensor, licensee practices described in the Disclosure Schedule affecting Personnel other than (i) contributions made in accordance with the normal practices of the Company and its Subsidiary or (ii) the extension of coverage to other third party having business relations with VGX or any of its SubsidiariesPersonnel who became eligible after the December Balance Sheet Date;
(d) sale, assignment or transfer of any of the assets of the Company or its Subsidiary, material singly or in the aggregate, other than in the ordinary course of business;
(e) cancellation of any indebtedness or waiver of any rights of substantial value to the Company or its Subsidiary, other than write-offs or write-downs in the ordinary course of business;
(f) amendment, cancellation or termination (other than in accordance with its terms or otherwise in the ordinary course of business) of any Contract, license or other instrument material to the Company or its Subsidiary;
(g) capital expenditure or the execution of any lease or any incurring of liability therefor by the Company or its Subsidiary, involving payments, in the aggregate, or at an annualized rate, of $25,000 or more;
(h) failure to pay any obligation of the Company or its Subsidiary, except in the ordinary course of business or where contested in good faith, or where such failure would not have a material adverse effect on the financial condition, assets, liabilities or business of the Company or its Subsidiary;
(i) failure to operate the business of the Company or its Subsidiary in the ordinary course;
(j) change in accounting methods or practices by the Company or its Subsidiary affecting its assets, liabilities or business (whether for accounting or tax purposes) including any material increase or change in any assumptions underlying or methods of calculating bad debt, contingency or other reserves;
(k) revaluation by the Company or its Subsidiary of any of its assets, including without limitation, writing off notes or accounts receivable in any material respect other than in the ordinary course of business;
(l) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the properties, assets or business of VGX the Company or its Subsidiary in any of its Subsidiariesmaterial respect;
(em) mortgage, pledge, grant or creation of any commencement Encumbrance on any assets of Legal Proceedings against VGX the Company or any of its SubsidiariesSubsidiary, and no Person has notified VGX material singly or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case aggregate, except purchase money mortgages arising in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including secure indebtedness not exceeding the making fair market value of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)the assets subject thereto;
(gn) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, dividends or other distribution (whether in cash, stock, equity securities or property) distributions in respect of, any of VGX Capital Stock or any capital stock of the Company or its Subsidiaries;
(n) Subsidiary, or any purchaseredemption, redemption purchase or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX the Company's or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsSubsidiary's equity securities;
(o) any issuance or reservation for issuance by VGX the Company or any of its Subsidiaries Subsidiary of, or commitment of it the Company or its Subsidiary to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it ofissue, any shares of capital stock or other equity securities or obligations or securities convertible into or exchangeable for shares of capital stock or other equity securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred by the Company or guaranteed by VGX or any of its Subsidiaries Subsidiary for borrowed money or any commitment to borrow money entered into by VGX the Company or any of its Subsidiaries in excess of $500,000Subsidiary, or any loans other than advances of business expenses in the ordinary course of business made or agreed to be made by VGX the Company or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable Subsidiary;
(q) liabilities incurred or assumed by the Company or its Subsidiary involving $5,000 or more except in the ordinary course of businessbusiness and consistent with past practice;
(ur) payment, discharge or satisfaction of any commencement liabilities of Legal Proceedings by VGX the Company or any its Subsidiary in excess of its Subsidiaries$5,000 other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the 1995 Balance Sheet or incurred in the ordinary course of business and consistent with past practice since February 28, 1995;
(vs) any acquisition agreement or disposition of any equity interest in any other Person; or
(w) any agreement commitment by VGX the Company or any of its Subsidiaries Subsidiary to do any of the foregoing;
(t) other event or condition of any character which in any one case or in the aggregate has materially adversely affected, or any event or condition known to Sellers which it is reasonable to expect will, in any one case or in the aggregate, materially adversely affect the Company's or its Subsidiary's relationships with its customers and the Company's or its Subsidiary's obtaining of renewals of contracts and new contracts with its customers; or
(u) personnel changes of the Company or its Subsidiary, except as disclosed on Schedule 4.4 hereto.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Since December 31, 2007, and except as set forth in Section 4.9(a) of the date PICA Disclosure Schedule, neither PICA nor any PICA Subsidiary has (except as required by Applicable Law): (i) increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any executive officer, employee, or director from the amount thereof in effect as of VGX Balance SheetDecember 31, VGX and each of its Subsidiaries has conducted its business 2007, except for changes in benefits in the ordinary course consistent with past practice andof business, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect granted any equity based compensation or severance or termination pay, entered into any contract to VGXI onlymake or grant any equity based compensation or severance or termination pay, to or paid any bonuses, or (iii) suffered any strike, work stoppage, slowdown, or other labor disturbance.
(b) Since December 31, 2007, and except as set forth in Section 4.9(b) of the Knowledge of VGXPICA Disclosure Schedule, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
been: (ai) any Material Adverse Effect on VGX on any of its Subsidiaries;
PICA and the PICA Subsidiaries taken as a whole; (bii) any resignation material change in any method of accounting or termination accounting principles or practice by VGX PICA or any PICA Subsidiary, except as required by GAAP or SAP and disclosed in the notes to the unaudited financial statements of its Subsidiaries of any executive officer or director;
PICA and the PICA Subsidiaries; (ciii) any written notice material change in the actuarial, investment, reserving, underwriting or claims administration policies, practices, procedures or methods of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX PICA or any of its Subsidiaries;
PICA Insurance Subsidiary; (div) any damage, destruction or loss (loss, whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the properties or business of VGX PICA or any of its Subsidiaries;
PICA Subsidiary; (ev) any commencement discharge or cancellation, whether in part or in whole, of Legal Proceedings against VGX any material indebtedness owed by PICA or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason PICA Subsidiary to reasonably believe that any Person, intends except reimbursement to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer employees of ordinary business expenses or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than debts arising in the ordinary course of business;
; (kvi) any establishment, termination sale or amendment transfer of any VGX Employee Plan;
(l) any material increase asset or property of severance or termination pay to any employee of VGX PICA or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXPICA Subsidiary, except in the ordinary course of business;
; (tvii) any indebtedness incurred sale, assignment or guaranteed by VGX transfer of any trademarks, trade names, or other intangible assets of PICA or any of its Subsidiaries for borrowed money PICA Subsidiary; or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(uviii) any commencement of Legal Proceedings by VGX material amendment to or any of its Subsidiaries;
(v) any acquisition or disposition termination of any equity interest in any other Person; or
(w) any agreement by VGX PICA Contract or any of its Subsidiaries to do any of the foregoingPermit.
Appears in 1 contract
Absence of Certain Changes or Events. Since the Balance Sheet Date to the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvethis Agreement:
(a) there has not been any Company Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation no Acquired Company has amended or termination by VGX or any of otherwise modified its Subsidiaries of any executive officer or directorCharter Documents;
(c) any written notice of any actual or threatened termination by any material customerno Acquired Company has declared, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting set aside or payment of paid any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, to any of VGX Capital Stock or any capital stock of its Subsidiariessecurities;
(nd) no Acquired Company has altered any purchase, redemption or other acquisition by VGX or any of its Subsidiaries term of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsrespective outstanding securities;
(oe) no Acquired Company has sold, leased, transferred or assigned any issuance property or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it assets of any subscriptionsAcquired Company, rightsexcept for the sale of inventory and the grant of Out-Bound Licenses on a non-exclusive basis, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, in each case other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice;
(pf) any splitno Acquired Company has incurred, combination assumed or reclassification guaranteed Indebtedness, or materially modified the terms of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment Indebtedness outstanding as of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations Balance Sheet Date in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except each case other then in the ordinary course of businessbusiness consistent with past practice;
(tg) no Acquired Company has incurred any indebtedness incurred material Liability or guaranteed by VGX created or assumed any Lien on any asset, except for Permitted Liens, Liens arising under lease financing arrangements existing as of its Subsidiaries the Balance Sheet Date and Liens for borrowed money taxes not yet due and payable with respect to which the Company maintains adequate reserves;
(h) no Acquired Company has made any material loan, advance or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000capital contribution to, or investment in, any loans made or agreed to be made by VGX or any of its Subsidiaries, Person other than reasonable travel and entertainment expense loans or advances and trade accounts receivable in the ordinary course of businessbusiness consistent with past practice;
(ui) there has not been any commencement of Legal Proceedings by VGX labor dispute, other than individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of its Subsidiariesany Acquired Company;
(vj) there has not been any acquisition material damage, destruction or disposition loss with respect to the property and assets of any equity interest Acquired Company, whether or not covered by insurance;
(k) no Acquired Company has made any material change in accounting practices;
(l) no Acquired Company has made any other PersonTax election, changed its method of Tax accounting or settled any claim for Taxes; or
(wm) any agreement by VGX no Acquired Company has agreed, whether in writing or any of its Subsidiaries otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Valeant Pharmaceuticals International)
Absence of Certain Changes or Events. Since Except as set forth in SCHEDULE 3.11 of the date Pubco Disclosure Schedule, since December 31, 2004, (i) the business of VGX Balance Sheet, VGX and each of its Subsidiaries Pubco has been conducted its business in all material respects in the ordinary course consistent with past practice and, since such date, and (iii) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) a material adverse change in the assets, liabilities, business, results of operations, condition (financial or otherwise) or prospects of Pubco, or any event, occurrence or development which has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on VGX on any of its SubsidiariesPubco;
(b) any resignation declaration, setting aside or termination by VGX payment of any dividend or other distribution in respect of any shares of capital stock of Pubco, or any of its Subsidiaries repurchase, redemption or other acquisition by Pubco of any executive officer or directorPubco securities;
(c) any written notice incurrence or assumption by Pubco of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX indebtedness for borrowed money (or any of its Subsidiariesrenewals, replacements, or extensions that increase the aggregate commitments thereunder);
(d) any creation or assumption by Pubco of any material Lien on any material asset of Pubco;
(e) any making of any loan, advance or capital contribution to or investment in any Person by Pubco;
(i) any contract or agreement entered into by Pubco on or prior to the date hereof relating to any material acquisition or disposition of any assets or business or (ii) any modification, amendment, assignment, termination or relinquishment by Pubco of any contract, license or other right (including any insurance policy naming it as a beneficiary or a loss payable payee);
(g) any (i) grant of any severance or termination pay to any director, officer, employee, consultant or contractor of Pubco; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer, employee, consultant or contractor of Pubco; (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements; or (iv) increase in compensation, bonus or other benefits payable to directors, officers, employees, consultants or contractors of Pubco other than, in the case of clause (iv) only, increases prior to the date hereof in compensation, bonus or other benefits payable to employees, consultants or contractors of Pubco;
(h) any (i) making or revoking of any material election relating to Taxes, (ii) settlement or compromise of any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or (iii) change to any material methods of reporting income or deductions for federal income tax purposes;
(i) any capital expenditures in excess of $10,000 individually and in excess of $25,000 in the aggregate;
(j) any lease, license or grant to any Person of any rights in any of Pubco's assets or properties;
(k) any amendment of the articles of incorporation or bylaws of Pubco;
(l) any sufferance of any material damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or to any material portion assets of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;Pubco; and
(m) any declaration, setting aside or payment of any dividend onissuance, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve authorization for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest securities of Pubco, except as otherwise provided in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingAgreement.
Appears in 1 contract
Samples: Merger Agreement (Creative Solutions With Art, Inc.)
Absence of Certain Changes or Events. Since the date of VGX Balance SheetSheet Date, VGX and each of its Innkeepers REIT and the Innkeepers Subsidiaries has conducted its business only in the ordinary course consistent with past practice andpractice, since such dateand there has not been, except as expressly and specifically disclosed in Innkeepers REIT's filings under the Exchange Act filed prior to the date hereof, as required under this Agreement or as set forth in Section 3.1(f) of the Innkeepers Disclosure Letter: (i) with respect to VGX and its Subsidiaries other than VGXI there has not been (A) individually or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
, an Innkeepers Material Adverse Effect; (i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mB) any declaration, setting aside for payment or payment of any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, to any of VGX Capital Stock the Innkeepers REIT Common Shares, the Series C Preferred Shares or any capital stock of its Subsidiaries;
LP Units; (nC) any purchaseamendment of any term of any outstanding security of Innkeepers REIT or any Innkeepers Subsidiary; (D) any repurchase, redemption or other acquisition by VGX Innkeepers REIT or any of its Subsidiaries Innkeepers Subsidiary of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any optionsoutstanding shares, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock of, or other securitiesownership interests in, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock Innkeepers REIT or any securities convertible Innkeepers Subsidiary; (E) any change in any method of accounting or accounting practice or any material change in any tax method or election by Innkeepers REIT or any Innkeepers Subsidiary; or (F) any material commitment, contractual obligation (including any management or franchise agreement, any lease (capital or otherwise) or any letter of intent), borrowing, guarantee, capital expenditure or transaction (each, a "Commitment") entered into capital stock, by Innkeepers REIT or by any Innkeepers Subsidiary other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under consistent with past practice and, with respect to capital expenditures, in accordance with the VGX Option Plancapital expenditure budgets that have been previously provided to the Purchaser Parties, except for Commitments for expenses of attorneys, accountants, investment bankers and other advisors incurred in connection with the Merger; or (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(pii) any split, combination or reclassification of any of VGX Innkeepers REIT Capital Stock or any issuance or the capital stock authorization of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock for, or giving the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation right to acquire by exchange or By-Laws of VGX;
(r) exercise, any capital expenditure or execution stock, shares of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX beneficial interest or any issuance of its Subsidiaries of an ownership interest in, any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingInnkeepers Subsidiary.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as set forth on Schedule 2.7 or otherwise disclosed in the ordinary course consistent with past practice andwriting to Acquiror pursuant to this Agreement, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXInterim Balance Sheet Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) actual or threatened material adverse change in the condition (financial or otherwise), business or operations of the Company and its Subsidiaries, taken as a whole;
(b) material increase of more than ten percent in the rate of compensation payable or to become payable to any Material Adverse Effect employee of the Company or its Subsidiaries or any consultant, representative or agent of the Company or its Subsidiaries, including the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, or the addition to, modification of, or contribution to any Benefit Plan, arrangement, or practice described on VGX on any Schedule 2.7 other than (i) contributions made for 1996 in accordance with the normal practices of the Company or its Subsidiaries or (ii) the extension of coverage to others who become eligible after the Interim Balance Sheet Date or (iii) such increases, payments, grants or accruals as occur in the ordinary course of business of the Company or its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customermortgage, supplier, partner, licensor, licensee pledge or other third party having encumbrance of, individually or in the aggregate, material assets, except purchase money mortgages arising in the ordinary course of business relations with VGX or any of the Company and its Subsidiaries;
(d) any damagesale, destruction assignment or loss (whether transfer of, individually or not covered by insurance) materially and adversely affecting any of in the aggregate, material assets, or any material portion other than in the ordinary course of business of the assets, of VGX or any of its Subsidiaries or materially Company and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement incurrence of Legal Proceedings against VGX material indebtedness by the Company or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any material commitment to borrow money entered into by VGX the Company or any of its Subsidiaries in excess of $500,000Subsidiaries, or any material loans made or agreed to be made by VGX the Company or any of its Subsidiaries, or any material indebtedness guaranteed by the Company or its Subsidiaries;
(f) to the Company's knowledge, incurrence by the Company or its Subsidiaries of material liabilities (or liabilities which, when aggregated with all other than reasonable travel and entertainment expense advances and trade accounts receivable such liabilities, are material), absolute or contingent, except liabilities incurred in the ordinary course of business;
(u) business of the Company and its Subsidiaries and consistent with past practice, or increase or change in any commencement assumptions underlying or methods of Legal Proceedings by VGX calculating any doubtful account contingency or any other reserves of the Company or its Subsidiaries;
(vg) any acquisition payment, discharge or disposition satisfaction of any equity interest material liabilities of the Company or its Subsidiaries other than the payment, discharge or satisfaction of material liabilities in the ordinary course of the business of the Company and its Subsidiaries consistent with the past practice of the Company and its Subsidiaries and, in the case of indebtedness for borrowed money, limited to scheduled repayments disclosed in the Interim Balance Sheet or on Schedule 4.1(i);
(h) capital expenditure in excess of $100,000 in any instance (or in the
(i) failure to pay or satisfy when due any obligation of Seller in connection with the business or operations of the Company or its Subsidiaries, except where the failure would not have a material adverse effect on the business, operations or financial condition of the Company and its Subsidiaries, taken as a whole;
(j) disposition or lapsing of any material Intellectual Property rights;
(k) repurchase or redemption of any shares of the Company's capital stock other Personthan stock purchased from former employees of the Company or any of its Subsidiaries and the amounts paid therefor are taken into account in the determination of the Merger Consideration; or
(wl) any agreement by VGX the Company or any of its Subsidiaries to the Company's knowledge to do any of the foregoingthings described in the preceding clauses (a) through (k) other than as provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as set forth on Schedule 3.10, since September 30, 2008 through the date hereof, (i) the businesses of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business the Acquired Companies have been operated in the ordinary course consistent with past practice and, since such datepractices, (iii) there has not been a Material Adverse Effect and (iii) with respect to VGX and its Subsidiaries other than VGXI the Acquired Companies there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect on VGX on material reevaluation by the Acquired Companies of any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customertheir Assets, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable Accounts (except in the ordinary course of business);
(b) merger or consolidation with, purchase of substantially all of the assets of, or other acquisition of any business or proprietorship, firm, association, corporation or other business organization or division thereof by any of the Acquired Companies;
(c) increase by any of the Acquired Companies of any bonuses, salaries or other compensation to any stockholder, director, member, manager, officer or employee thereof;
(d) entry by any of the Acquired Companies into any employment, severance, change of control, indemnification or similar contract with any director, officer, manager or employee thereof or modification or termination of any such existing agreements or contracts;
(e) entry into, termination or modification of any collective bargaining agreement or other written agreement by any of the Acquired Companies;
(f) adoption of, or increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, severance or other employee benefit plan for or with any employees of any of the Acquired Companies;
(g) change in the accounting methods or Tax elections used by the Acquired Companies;
(h) sale, lease, mortgage, subjection to any Liens or other disposal of or encumbrance of, any tangible Asset, other than sales in the ordinary course of business;
(i) amendment, extension, renewal or termination of any leases to which any of the Acquired Companies is party, or entry into any new lease, sublease, license or other agreement for the use or occupancy of any real property by any of the Acquired Companies;
(j) entry into any transactions of the type described in Section 3.26 hereof;
(k) any establishment, termination incurrence or amendment assumption of any VGX Employee Plandebt of the Acquired Companies that would remain outstanding following the Closing;
(l) cancellation or waiver of any material increase claims or rights with a value to the Acquired Companies, individually or in the aggregate, of severance or termination pay to any employee of VGX or any Subsidiary of VGXmore than $25,000;
(m) sale, lease, transfer, license, granting of a covenant not to xxx, abandonment, lapse, mortgage, subjection to any declaration, setting aside Liens or payment other disposal of or encumbrance of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;Company Intellectual Property; or
(n) any purchaseagreement, redemption whether oral or other acquisition written, by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries Acquired Companies to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since (a) Except as set forth on Schedule 6.13(a) of the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and---------------- Seller Disclosure Schedule, since such dateDecember 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX2006, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any a Seller Material Adverse Effect on VGX on any of its Subsidiaries;Effect.
(b) any resignation Except as set forth in Schedule 6.13(b) of the ---------------- Seller Disclosure Schedule or termination as otherwise expressly contemplated by VGX this Agreement or the Related Agreements, since December 31, 2006 to the date of this Agreement, the Seller has conducted the Evamist Business in the Ordinary Course of Business, and the Seller has not, with respect to the Evamist Business or any of its Subsidiaries the Purchased Assets:
(i) subjected any of the Purchased Assets to any executive officer or directorEncumbrances;
(cii) sold, transferred, leased, subleased, licensed or otherwise disposed of, to any written notice third party, any Purchased Assets or assets necessary for the conduct of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesthe Evamist Business;
(diii) sold, licensed or sublicensed or otherwise transferred any rights to any third party under any Purchased Assets;
(iv) entered into any Assumed Contract or accelerated, cancelled, modified or terminated any material Assumed Contract, other than in the Ordinary Course of Business;
(v) surrendered, revoked or otherwise terminated any Evamist Governmental Permits, except in connection with any renewal or reissuance thereof;
(vi) incurred Assumed Liabilities, other than in the Ordinary Course of Business;
(vii) waived, released or assigned any rights, which rights, but for such waiver, release or assignment, would have been classified as Purchased Assets, other than in the Ordinary Course of Business;
(viii) experienced any damage, destruction or casualty loss (whether or not covered by insurance) materially with respect to any Purchased Asset other than as a result of ordinary wear and adversely affecting any of the material assetstear, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiarieswhere applicable;
(eix) delayed or postponed the payment of any commencement Assumed Liability outside the Ordinary Course of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal ProceedingBusiness;
(fx) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in the Purchased Assets or the Evamist Business, made any one case election or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) election in respect ofto Taxes, adopted or changed any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities accounting method in respect ofto Taxes, entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, settled or compromised on any claim, notice, audit report or assessment in lieu respect of or in substitution for Taxes, consented to any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness extension or waiver of the limitation period applicable to any rights material to VGXclaim or assessment in respect of Taxes, except in the ordinary course of business;
(t) changed any indebtedness incurred or guaranteed by VGX or annual Tax accounting period, filed any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000amended Tax Return, or surrendered any loans made or agreed right to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personclaim a Tax refund; or
(wxi) any agreement by VGX agreed, whether in writing or any of its Subsidiaries otherwise, to do any of the foregoing, except as expressly contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as set forth in the ordinary course consistent with past practice andSchedule 3.3, since such dateSeptember 30, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1996, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) no increase in the indebtedness for borrowed money incurred by AAP or the AAP Subsidiaries and no incurrence of any Material Adverse Effect on VGX on any other obligation or liability (fixed or contingent), except for borrowings under the revolving credit facility of its SubsidiariesAAP and trade obligations and other liabilities incurred in the ordinary course of business consistent with past practice;
(b) any resignation no material adverse change in the assets, liabilities, properties, business, profits, prospects or termination by VGX condition of AAP or any the AAP Subsidiaries and, to the best knowledge of its Subsidiaries AAPH, no occurrence of any executive officer fact or directorexistence of any condition which might reasonably be expected to cause such a change in the future;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any no damage, destruction destruction, loss or loss (claim to or against any property or assets of AAP or the AAP Subsidiaries, whether or not covered by insurance, which materially affects the assets, liabilities, properties, business, profits, prospects or condition of AAP or the AAP Subsidiaries; 8
(d) materially no sale, transfer, other disposition, mortgage or pledge of, and adversely affecting no imposition of any lien, charge or encumbrance on, any of the material assets, properties or any material portion assets of AAP or the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case resulting from transactions in the ordinary course of business and consistent with past practicespractice;
(e) no contribution to the capital, no dividend or pursuant to existing contractual commitments)other distribution or payment in respect of, including and no subdivision, consolidation or other recapitalization of, the making capital stock of AAP or the AAP Subsidiaries and no declaration or authorization of any loan of the foregoing;
(f) no issuance or payment of any special bonuses to such person (other than advancement employees of routine travel, entertainment and other business expenses)AAP or the AAP Subsidiaries;
(g) any transaction no agreements or understandings with respect to the merger, consolidation, liquidation or reorganization of AAP or the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")AAP Subsidiaries;
(h) any sale, lease, license, assignment no termination or exclusive license receipt of notice of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) termination of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course material agreement of VGX's business AAP or the business of AAP Subsidiaries, nor has AAP or the AAP Subsidiaries entered into any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in material agreement or made any one case or $1,000,000 in the aggregate;material commitment; and
(i) no actual or overtly threatened employee strikes, work stoppages, slow-downs or lock-outs affecting AAP or the AAP Subsidiaries, nor any material change by VGX or in the relationship of AAP and the, AAP Subsidiaries with any of its Subsidiaries in its accounting methodsemployees, principles salesmen, distributors, sales representatives or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingindependent contractors.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Forte Computer Easy Inc)
Absence of Certain Changes or Events. Since the Balance Sheet Date there have not been any events, changes, occurrences or state of facts that, individually or in the aggregate, have had or are reasonably likely to have a Company Material Adverse Effect. Except as disclosed in the Filed Company SEC Documents, since the Balance Sheet Date (a) the Company and its Subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice through and including the date of VGX Balance Sheetthis Agreement and (b) except as set forth in Section 3.6 of the Company Disclosure Schedules, VGX and each neither the Company nor any of its Subsidiaries has conducted its business taken any action described in Section 5.2(a) hereof that, if taken after the ordinary course consistent with past practice anddate hereof and prior to the Reverse Merger Effective Time without the prior written consent of Parent, since would violate such dateprovision. Without limiting the foregoing, except (i) with respect to VGX as disclosed in the Filed Company SEC Documents and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI onlymatters subsequent to the date of this Agreement, to the Knowledge of VGXextent expressly permitted by Section 5.2(a), since the Balance Sheet Date there has not been nor has VGX been asked to act in any management occurred any: (A) sale or stockholder capacity to allow for other disposition of or approve:
(a) any Material Adverse Effect on VGX on 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, (bB) declaration, setting aside or payment of any resignation dividend or termination 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 VGX 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 executive officer capital stock of the Company, (C) split, combination or director;
(c) any written notice reclassification of any actual capital stock of the Company, (D) change in financial or threatened termination 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 Tax election inconsistent with past practices or the settlement or compromise of any material customerTax liability, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(dF) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting of any material asset of the material assets, or any material portion of the assets, of VGX Company or any of its Subsidiaries or which materially and adversely affecting affects the business of VGX or any of its Subsidiaries;
use thereof, (eG) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX granting by the Company or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer of any increase in compensation, except as was required under any employment agreements in effect as of the Balance Sheet Date, complete and correct copies of which have been made available to Parent, or director any granting by the Company or any of VGX (its Subsidiaries to any employee other than an officer of any increase in compensation, except for normal increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practicespractice, or pursuant to existing contractual commitments), including (H) granting by the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX Company or any of its Subsidiaries to any officer of any increase in its accounting methods, principles (or practicesacceleration 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 concurrent changes in US GAAP;
(j) any material revaluation by VGX the Company or any of its Subsidiaries to any employee other than an officer of any increase in (or acceleration of its assets, including writing down the value of capitalized inventory vesting or writing off notes or accounts receivable other than in the ordinary course of business;
(kpayment of) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXpay, except in the ordinary course of business;
business consistent with past practice, (tI) any indebtedness incurred or guaranteed entry by VGX the Company or any of its Subsidiaries for borrowed money into any (or amendment of any commitment to borrow money entered into by VGX existing) employment, severance or termination agreement with any of its Subsidiaries in excess of $500,000officer, (J) establishment, adoption, amendment or modification of, or increase of benefits under, any loans made or agreed to be made by VGX or any of its Subsidiaries, plan that would constitute a Company Plan (other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course a Multiemployer Plan) or (K) acceleration of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition vesting of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries option to do any acquire capital stock of the foregoingCompany.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date Except as set forth in appropriate subsection of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice andSCHEDULE 3.5, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXBalance Sheet Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any event, occurrence, fact, condition, change or development, including the announcement of the transactions contemplated by this Agreement, which, individually or in the aggregate, has had a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation change in any of the methods of accounting or termination by VGX accounting practice of Showco; or any increase or any change in any assumptions underlying, or methods of its Subsidiaries of calculating, any executive officer bad debt, contingency or directorother reserves relating to the Assets or the Business;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or other casualty loss (whether or not covered by insurance) materially and adversely affecting suffered by Showco;
(d) any bonus paid or any increase in the rate of compensation or of the material assetsbenefits payable, or to become payable, to any material portion of Employee over the assets, of VGX or any of its Subsidiaries or materially and adversely affecting levels in effect on the business of VGX or any of its SubsidiariesBalance Sheet Date;
(e) any commencement sale, lease, transfer or other disposition of Legal Proceedings against VGX or any Asset, other than the sale of its Subsidiaries, and no Person has notified VGX or any inventory in the ordinary course of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingbusiness consistent with past practice;
(f) any material increase in labor dispute relating to the compensation payable Business;
(g) any payment, discharge or satisfaction of any claim, liability or obligation (whether accrued, fixed, contingent or otherwise) relating to any officer the Assets or director of VGX (the Business other than increases in each case in connection with general performance reviews and annual salary increases in each case the payment, discharge or satisfaction in the ordinary course of business and consistent with past practices, practice of liabilities and obligations reflected or pursuant to existing contractual commitments), including reserved against in the making Balance Sheet or incurred in the ordinary course of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of consistent with past practice since the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")Balance Sheet Date;
(h) any sale, lease, license, assignment grant or exclusive license imposition of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Liens except for Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX write-off as uncollectible of any note or any account receivable of its Subsidiaries in its accounting methods, principles or practicesShowco, except as required by concurrent changes for immaterial amounts in US GAAPthe ordinary course of business consistent with past practice;
(j) any material revaluation by VGX cancellation of debts or any of its Subsidiaries waiver of any claim or right of its assets, including writing down the substantial value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessShowco;
(k) any establishmentsale, termination transfer, license or amendment other disposition of, or compromise or lapse of any VGX Employee Planrights to the use of, any Intellectual Property;
(l) other than pursuant to the Console Agreement, any material increase of severance capital expenditure or termination pay commitment for any capital expenditure by Vari-Lite or Showco relating to any employee of VGX the Business, which individually exceeds $50,000 or any Subsidiary of VGX;in the aggregate exceeds $200,000 for additions to property, plant, equipment or intangible capital assets; or
(m) any declarationagreement, setting aside or payment of any dividend on, or other distribution (whether in cashwriting or otherwise, stockdirect or indirect, equity securities formal or property) informal, to take any action described in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to this Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoing3.5.
Appears in 1 contract
Samples: Asset Transfer Agreement (Vari Lite International Inc)
Absence of Certain Changes or Events. Since Except in connection with this Agreement and except as set forth in the date of VGX Balance SheetSellers Disclosure Memorandum, VGX and each of its Subsidiaries has since January 1, 2006, the Sellers have conducted its business the Business only in the ordinary course consistent with past practice and there have not occurred any events or changes that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Assets or the Business and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveexcept as set forth on Schedule 4.7 hereto:
(a) none of the Sellers, with respect to the Business, has (i) entered into any Material Adverse Effect on VGX on transaction or incurred any liability or obligation other than in the ordinary course of its Subsidiaries;
business, (bii) incurred any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or extraordinary loss (whether or not covered by insurance) materially and adversely affecting any of the material assets), or (iii) waived any rights that have a material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiariesvalue;
(eb) none of the Sellers, with respect to the Business, has sold or transferred any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (assets other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement assets that have been replaced with other assets of routine travel, entertainment and other business expenses)equal or greater value;
(gc) any transaction none of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any saleSellers, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 the Business, has incurred any liability that was unusual in any one case nature or $1,000,000 in the aggregate;
(i) any material change by VGX amount or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable indebtedness other than indebtedness to trade creditors incurred in the ordinary course of business;
(kd) none of the Sellers, with respect to the Business, has granted or agreed to grant any establishment, termination increase in any rate of salary or amendment compensation or in benefits of any VGX Employee Plan;
(l) any material increase of severance or termination pay kind to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any optionsemployees, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock annual increases in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practices;
(pe) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment none of the Certificate of Incorporation Sellers, with respect to the Business, has amended or By-Laws of VGX;
(r) terminated any capital expenditure contract or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material license to VGX, which it is a party except in the ordinary course of business;; and
(tf) none of the Sellers, with respect to the Business, has established any indebtedness incurred new Plan (as defined in Section 4.11), amended or guaranteed by VGX or modified any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000existing Plan, or incurred any loans made obligation or agreed to be made by VGX liability under any Plan materially different in nature or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable amount from obligations or liabilities incurred during similar periods in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingprior years.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except for liabilities incurred in the ordinary cause of business and consistent with past practice or in connection with this Agreement or the transactions contemplated hereby, since December 31, 1999 and through the date of VGX Balance Sheetthis Agreement, VGX and each of its Subsidiaries PeopleMover has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case only in the ordinary course of business and consistent with past practicespractice, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
there has not been (i) except as disclosed on Section 3.1(f)(i) of the PeopleMover Disclosure Schedule, any material adverse change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course business, results of business;
operations, prospects or financial condition PeopleMover, (k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mii) any declaration, setting aside or payment of any dividend ondividend, bonus or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, to any of VGX PeopleMover's Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX OptionsStock, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX PeopleMover's Capital Stock or any issuance or the capital stock authorization of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for shares of PeopleMover's Capital Stock, (iv) (A) any VGX Capital Stock granting by PeopleMover to any current or the capital stock former director, executive officer or other key employee of PeopleMover of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation increase in compensation, bonus or By-Laws of VGX;
(r) any capital expenditure other benefits payable or execution of any lease to become payable by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXPeopleMover, except for normal increases in cash compensation in the ordinary course of business;
business consistent with past practice or as was required under any employment agreements of PeopleMover in effect on December 31, 1999 and previously delivered to Opus360, (tB) any indebtedness incurred granting by PeopleMover to any current or guaranteed by VGX former director, executive officer or key employee of PeopleMover of any increase in severance or termination pay, except as set forth in Section 3.1(f)(iv)(B) of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel the PeopleMover Disclosure Schedule and entertainment expense advances and trade accounts receivable occurring in the ordinary course of business;
business and consistent with past practice, (uC) except as set forth on Section 3.1(f)(iv)(C) of the PeopleMover Disclosure Schedule, any entry by PeopleMover into, or any amendments of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or key employee of or consultant to PeopleMover or (D) any commencement of Legal Proceedings by VGX amendment to, or modification of, any of its Subsidiaries;
PeopleMover Option, (v) except insofar as may have been required by a change in United States Generally Accepted Accounting Principles or as specifically permitted pursuant to Section 5.13 hereof, any acquisition change by PeopleMover in accounting methods, principles or disposition practices by PeopleMover materially affecting its assets, liabilities or business, (vi) any material Tax election or any settlement or compromise of any equity interest in any other Person; or
material Tax liability or (wvii) except as disclosed on Section 3.1(f)(vii) of the PeopleMover Disclosure Schedule, any agreement by VGX or any of its Subsidiaries understanding to do any of the foregoingforegoing by PeopleMover.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as expressly contemplated by this Agreement or as set forth in Schedule 4.6 hereto or in any SEC Report filed and publicly available prior to the date of VGX Balance Sheetthis Agreement, VGX since June 30, 1999, the business of the Company and each of its the Subsidiaries has been conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any of the material assets, or any material portion assets of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX Company or any of its Subsidiaries, and no Person has notified VGX except as would not, individually or in the aggregate, have a Material Adverse Effect;
(c) any redemption or other acquisition of Shares by the Company or any of its the Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stockstock or property with respect to the Company Common Stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination purchases heretofore made pursuant to the terms of their pre-existing stock option or purchase agreementsthe Company Employee Benefit Plans (as defined in Section 4.8(a));
(od) any issuance material change by the Company in accounting methods, principles or reservation for issuance practices;
(e) any material revaluation by VGX or the Company of any of its Subsidiaries ofmaterial asset (including, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it ofwithout limitation, any shares writing down of capital stock the value of inventory or other securities writing off of notes or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stockaccounts receivable), other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice;
(pf) any split, combination or reclassification of any of VGX Capital Stock or entry by the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX Company or any of its Subsidiaries of Subsidiary into any indebtedness commitment or waiver of any rights transaction material to VGXthe Company and the Subsidiaries taken as a whole, except other than commitments or transactions entered into in the ordinary course of businessbusiness consistent with past practice;
(tg) any indebtedness incurred increase in or guaranteed by VGX amendment to (in the case of directors and executive officers of the Company) or any material increase in or material amendment to (in the case of its Subsidiaries for borrowed money other officers and Key Management Personnel) or establishment of any commitment to borrow money entered into by VGX 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, or the acceleration of vesting of any of its Subsidiaries in excess of $500,000such options, rights or awards) stock purchase or other employee benefit plan or agreement or arrangement, or any loans made other increase in the compensation payable or agreed to be made by VGX become payable to any present or former directors, officers or Key Management Personnel of the Company or any of its SubsidiariesSubsidiary, other than reasonable travel except for increases in base compensation and entertainment expense advances and trade accounts receivable bonuses in the ordinary course of businessbusiness consistent with past practice;
(uh) any commencement of Legal Proceedings entry by VGX the Company or any Subsidiary into any employment, consulting, severance, termination or indemnification agreement or arrangement with any director, officer or key employee of its Subsidiaries;
(v) the Company or any acquisition Subsidiary or disposition of any equity interest in entry into any such material agreement with any other Personperson; or
(wi) any agreement agreement, in writing or otherwise, by VGX the Company or any of its Subsidiaries Subsidiary to do take any of the foregoingactions described in this Section 4.6, except as expressly contemplated by this Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheetthe Latest ------------------------------------ Financial Statements, VGX TARGET and each of its Subsidiaries has have conducted its business their businesses only in the ordinary course consistent with past practice Ordinary Course of Business and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(ai) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX with respect to TARGET or any of its Subsidiaries;
; (e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(iii) any material change by VGX or any of its Subsidiaries TARGET in its accounting methods, principles or practices; (iii) any increase in dividends or employee compensation or benefits payable by TARGET, except as required by concurrent changes for increases in US GAAP;
the Ordinary Course of Business; (jiv) any material revaluation by VGX or any of its Subsidiaries TARGET of any of its assets, including including, without limitation, writing down the value of capitalized software or inventory or writing off notes or accounts receivable other than in the ordinary course Ordinary Course of business;
Business; (kv) any establishmentchange in any material respect in which the business of TARGET and its Subsidiaries has been conducted, termination including, without limitation, billing of clients or amendment collection of any VGX Employee Plan;
accounts receivable, purchases of goods and services or payment of accounts payable; (lvi) any material increase of severance agreement and/or understanding entered into which materially alters or termination pay amends any licensing or contractual arrangements with respect to any employee TARGET Intellectual Property Rights, other than in the Ordinary Course of VGX Business; (vii) any loss or change in the relationships with any Subsidiary of VGX;
client, contractor or supplier that would constitute a TARGET Material Adverse Effect; (mviii) any declaration, setting aside or payment of any a dividend on, or other distribution (whether in cash, stock, equity securities or property) in with respect of, any of VGX Capital Stock or any to the capital stock of its Subsidiaries;
(n) TARGET, or any purchasedirect or indirect redemption, redemption purchase or other acquisition by VGX or TARGET of any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, repurchase rights under stock option agreements; (iiix) the granting of options to purchase VGX Common Stock any increase in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants salary or other rights disclosed pursuant compensation payable or to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of become payable by TARGET to any of its Subsidiaries' officers, directors, or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by TARGET, of a bonus or other additional salary or compensation to any such person; (x) except as reflected on the Latest Financial Statements, any loan by TARGET to any person or entity, incurring by TARGET of any indebtedness, guaranteeing by TARGET of any indebtedness, issuance or authorization of issuance sale of any other debt securities in respect of, in lieu of TARGET or in substitution for any VGX Capital Stock or the capital stock guaranteeing of any debt securities of its Subsidiaries;
others except for advances to employees for travel and business expenses in the Ordinary Course of Business; or (qxi) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXother transaction, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000commitment, dispute, or any loans other action or event or condition that would be reasonably likely to have a TARGET Material Adverse Effect. BUYER acknowledges and agrees that recent and/or ongoing operating losses of TARGET do not make untrue the representations made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthis Section 3.8.
Appears in 1 contract
Samples: Merger Agreement (Thermatrix Inc)
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet(a) Except as set forth in notes 9(b), VGX 13 and each of its Subsidiaries has conducted its business 20 in the ordinary course consistent Financial Statements, the Acquired Business or the Seller with past practice andrespect to the Acquired Business has not since January 1, since such date, 2003 other than as disclosed in any Schedules herewith:
(i) waived or released any rights of value, or modified any Contract reflected on any Schedule to this Agreement, except to the extent disclosed on any Schedule;
(ii) introduced any material change with respect to VGX and the operation of its Subsidiaries other than VGXI there has business, including, but not been or (ii) limited to, changes with respect to VGXI only, the level of usable and saleable inventory maintained by the Acquired Business (other than routine changes in inventory levels that occur in the course of the operation of the Acquired Business through no action of the Seller intended specifically to affect inventory levels) or any change in practices with respect to the Knowledge repair or utilization of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiariesrepairable inventories;
(biii) suffered any resignation casualty, loss or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss damage (whether or not covered by insurance) materially and adversely affecting any which affects the ability of the material assets, or any material portion Seller to conduct the operations of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesAcquired Business;
(eiv) except for the Moneris Claim, compromised or settled any commencement of Legal Proceedings against VGX litigation, proceeding or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingother governmental action;
(fv) voluntarily or, to the Seller's knowledge, involuntarily sold, abandoned, surrendered or disposed of any material increase properties or assets relating to the Acquired Business;
(vi) made any capital contributions to, or investments in the compensation payable to or acquired any officer other Person or director of VGX any other business, including by merger or consolidation;
(vii) incurred any indebtedness for borrowed money or evidenced by notes, bonds, debentures or similar instruments or entered into any operating leases, other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including disclosed on the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)Closing Balance Sheet;
(gviii) become obligated under any transaction guarantee, standby letter of the type described credit, mortgage, security document or similar documents securing any liability in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license respect of any properties or assetsthird Person, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding except for Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness and disclosed on the Closing Balance Sheet;
(kix) made any establishmentmaterial change in any of the accounting methods and practices of the Acquired Business, termination or amendment of any VGX Employee Planexcept as required by changes in applicable accounting principles;
(lx) made any material increase change in the rate, form or amount of severance compensation or termination pay remuneration payable or to become payable to any employee of VGX or any Subsidiary of VGXits Employees;
(mxi) granted to any declarationcustomer any special allowance or discount, setting aside or changed its pricing, credit or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiariespolicies;
(nxii) suffered any purchase, redemption material cessation or other acquisition by VGX interruption of services;
(xiii) cancelled or reduced any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personinsurance coverage; or
(wxiv) any agreement by VGX authorized, agreed or any of its Subsidiaries otherwise committed, whether or not in writing, to do any of the foregoing.
(b) Since January 1, 2003, there has not been any material adverse change in the affairs, prospects, financial condition or results of operations of the Seller, any of the Assets or the Acquired Business and, to the knowledge of the Seller, no event has occurred or circumstance exists which may result in such a material adverse change.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetSheet Date, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXexcept as set forth on SCHEDULE 4.4, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any actual or threatened Material Adverse Effect on VGX on any Change in the financial condition, working capital, Purchased Assets, Assumed Liabilities, reserves, revenues, income, or earnings of its Subsidiariesthe Business;
(b) any resignation change in Tax or termination accounting methods, principles or practices by VGX Seller affecting the Purchased Assets, Assumed Liabilities or any of its Subsidiaries of any executive officer or directorthe Business;
(c) any written notice material revaluation by Seller of any actual of the Purchased Assets, including without limitation writing down the value of inventory or threatened termination by any material customer, supplier, partner, licensor, licensee writing off notes or other third party having business relations with VGX or any of its Subsidiariesaccounts receivable;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, Purchased Assets taken as a whole or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesBusiness;
(e) cancellation of any commencement indebtedness or waiver or release of Legal Proceedings against VGX any right or any claim of its Subsidiaries, and no Person has notified VGX Seller relating to the Purchased Assets or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence Business which had or will have a Legal ProceedingMaterial Adverse Effect on the Purchased Assets or the Business;
(f) any material other than in the ordinary course of Business, increase in the rate of compensation payable or to become payable to any officer or director other employee of VGX Seller involved in the Business or any consultant, Representative or agent of Seller involved in the Business, including without limitation the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, or the addition to, modification of, or contribution to any Employee Plan, arrangement, or practice described in the Disclosure Schedule;
(other than increases g) adverse change in each case employee relations which has or is reasonably likely to have a Material Adverse Effect on the Business or the Purchased Assets or the relationships between the employees of Seller and the management of Seller involved in connection with general performance reviews and annual salary increases in each case the Business;
(h) amendment, cancellation or termination of any material Contract, Lease, or Permit relating to the Purchased Assets or the Business or entry into any Contract, Lease, or Permit which is not in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments)business, including the making of without limitation any loan to such person (other than advancement of routine travel, entertainment and other business expenses)employment or consulting agreements;
(gi) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any salemortgage, lease, license, assignment pledge or exclusive license other Encumbrance of any properties or assetsPurchased Assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses except purchase money liens arising in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPbusiness;
(j) any material revaluation by VGX sale, assignment or any of its Subsidiaries transfer of any of its assetsthe Purchased Assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishmentincurrence by Seller of Liabilities relating to the Business, termination or amendment except Liabilities incurred in the ordinary course of any VGX Employee Planthe Business;
(l) increase or change in any material increase assumptions underlying, or methods of severance calculating, any doubtful account contingency or termination pay to any employee of VGX or any Subsidiary of VGXother reserves for the Business;
(m) any declarationpayment, setting aside discharge or payment satisfaction of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any Liabilities of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant Seller relating to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, Business other than (i) the issuancepayment, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock discharge or satisfaction in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise Business of VGX Warrants Liabilities set forth or other rights disclosed pursuant to Section 2.2;
(p) any split, combination reserved for on the Financial Statements or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except incurred in the ordinary course of business;
(tn) any indebtedness incurred or guaranteed capital expenditure by VGX or any of its Subsidiaries Seller for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries the Business in excess of $500,00010,000, or the incurring of any loans made obligation by Seller to make any such capital expenditure;
(o) failure to pay or agreed satisfy when due any Liability of Seller relating to be made by VGX the Business, except where the failure would not have a Material Adverse Effect on the Purchased Assets or the Business;
(p) disposition or lapsing of any material Proprietary Rights or any disposition or disclosure to any person of its Subsidiaries, any material Proprietary Rights not theretofore a matter of public knowledge;
(q) existence of any other event or condition which in any one case or in the aggregate has or might reasonably be expected to have a Material Adverse Effect on the Business or the Purchased Assets;
(r) other than reasonable travel and entertainment expense advances and trade accounts receivable as set forth in SCHEDULE 4.4(r), payment not in the ordinary course of businessBusiness from Seller to or on behalf of Seller or any officer, director, stockholder or employee of Seller, pursuant to any agreement or otherwise between Seller or any such person or otherwise;
(us) any commencement agreement, condition, action or omission which would be proscribed by (or require consent under) Section 6.5 had it existed, occurred or arisen after the date of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personthis Agreement; or
(wt) any agreement by VGX or any of its Subsidiaries Seller to do any of the foregoingthings described in the preceding clauses (a) through (s) other than as expressly provided for herein.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as expressly permitted by this Agreement or as set forth in Schedule 4.6 hereto or in the date SEC Reports, since January 1, 2000, the business of VGX Balance Sheet, VGX the Company and each of its the Subsidiaries has been conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX on Effect; provided, that any adverse effect (i) that is caused by conditions affecting the economy or security markets generally, (ii) that is caused by conditions affecting any of its Subsidiariesthe primary industries in which the Company currently competes or (iii) resulting from or arising in connection with this Agreement or the transactions contemplated hereby or the announcement hereof shall not be taken into account in determining whether there has been a Material Adverse Effect;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting with respect to any of the material assets, or any material portion assets of the assets, of VGX Company or any of its the Subsidiaries having a Material Adverse Effect;
(c) any redemption or materially and adversely affecting other acquisition of Shares by the business of VGX Company or any of its Subsidiariesthe Subsidiaries or any declaration or payment of any dividend or other distribution in cash, stock or property with respect to Shares; except for purchases heretofore made pursuant to the terms of the Company's employee benefit plans;
(d) any change by the Company in accounting methods, principles or practices used in preparing the Company's consolidated financial statements, other than any such change as may have been required by generally accepted accounting principles and which has been disclosed in writing to Parent;
(e) any commencement material revaluation by the Company of Legal Proceedings against VGX any asset (including, without limitation, any writing down of the value of inventory or any writing off of its Subsidiariesnotes or accounts receivable), and no Person has notified VGX or any other than in the ordinary course of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingbusiness consistent with past practice;
(f) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, other than commitments or transactions entered into in the ordinary course of business consistent with past practice;
(g) any material 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 material other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiary, except in the ordinary course of business consistent with past practice;
(h) any entry by the Company or any Subsidiary into any employment, consulting, severance, termination or indemnification agreement (i) with any employee of a Subsidiary that provides for annual payments of more than $100,000 and a term of one year or more or (ii) with any director or officer of the Company;
(i) (i) any settlement or director compromise by the Company or any Subsidiary of VGX (any claim, litigation or other legal proceeding, other than increases in each case the ordinary course of business consistent with past practice in connection with general performance reviews and annual salary increases in each case an amount not involving more than $2 million or (ii) any payment, discharge or satisfaction by the Company or any Subsidiary of any other claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) in the ordinary course of business and consistent with past practices, practice or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(gB) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case other such claims, liabilities or $1,000,000 in obligations reflected or reserved against in, or contemplated by, the aggregate;
consolidated financial statements (ior the notes thereto) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;the Company; or
(j) any material revaluation agreement, in writing or otherwise, by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX Company or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do take any of the foregoingactions described in this Section 4.6, except as expressly contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Burns International Services Corp)
Absence of Certain Changes or Events. Since Except as set forth on Schedule 5.6, since December 30, 2004, and to the date Knowledge of VGX Balance SheetHalex, VGX and each of its Subsidiaries since December 31, 2003, the Capitol Adhesives Business has conducted its business operated only in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX on any material adverse change in the condition (financial or otherwise), results of its Subsidiariesoperations or properties of the Capitol Adhesives Business;
(b) any resignation damage, destruction or termination loss, whether or not covered by VGX or any insurance, having an adverse effect on the Xxxxxxx Acquired Assets in excess of its Subsidiaries of any executive officer or director$25,000;
(c) any written notice of entry into or change to an employment or severance agreement related to any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its SubsidiariesCapitol Adhesives Employee;
(d) any damage, destruction agreement or loss (whether understanding relating to the Capitol Adhesives Business calling for payments in excess of $25,000 or not covered by insurance) materially and adversely affecting any in the ordinary course of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesCapitol Adhesives Business;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation or other benefits payable or to become payable by Halex to its managers, governors, directors, officers or employees relating to the Capitol Adhesives Business or any officer bonus, insurance, pension or director other employee benefit plan, payment or arrangement made to, for or with any of VGX its managers, governors, directors, officers or employees relating to the Capitol Adhesives Business;
(f) any entry into any commitment or transaction material to the Capitol Adhesives Business (including but not limited to, any borrowing, sale, lease, transfer or other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making disposition of any loan nature of a material asset or material amount of assets or capital expenditure in a material amount) or the sale, disposition, mortgage or pledge of a material asset (for purposes of this clause (f) an asset or assets having a book value of in excess of $25,000 relating to such person (other than advancement of routine travel, entertainment and other business expensesthe Capitol Adhesives Business shall be considered material);
(g) any transaction cancellation or waiver of any claims or rights relating to the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")Capitol Adhesives Business;
(h) any salewaiver, lease, license, assignment amendment or exclusive license modification or cancellation of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant agreement relating to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, Capitol Adhesives Business except in the ordinary course of business;
(ti) (i) any incurrence of indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or guaranty of any commitment indebtedness of another Person or issuance or sale of any debt securities or warrants or other rights to borrow money entered into by VGX acquire debt securities of Halex relating to the Capitol Adhesives Business; (ii) any loans, advances or any of its Subsidiaries in excess of $500,000capital contributions to, or investments in, any loans made Person; or agreed to be made by VGX (iii) payment, loan or any of its Subsidiaries, advance (other than reasonable travel and entertainment expense advances and trade accounts receivable payment of compensation or expenses in the ordinary course of business) to, or sale, transfer or lease of any of its properties or assets to or entry into any agreement with, any of Halex’s managers, governors, directors, officers or Affiliates;
(uj) any commencement creation or imposition of Legal Proceedings by VGX an Encumbrance on any asset or any property relating to the Capitol Adhesives Business except the automatic attachment of its Subsidiariesthe lien of Halex’s lender on after-acquired assets;
(vk) any acquisition capital expenditures other than in the ordinary course of business in the Capitol Adhesives Business in an aggregate amount exceeding $25,000;
(l) adoption, amendment or disposition entry into any Capitol Adhesives Employee Plans (as defined in Section 5.11) or adoption, amendment or entry into any new Capitol Adhesives Employee Plan, fringe benefit plan (including rights to severance or indemnification), incentive compensation, severance, retention, change in control or similar arrangement, employment contract or agreement or collective bargaining agreement, paid any special bonus or special remuneration with respect to any employee or any other person providing services to Halex;
(m) any change in Tax or accounting methods, principles, practices or policies used by Halex relating to the Capitol Adhesives Business, except as required by GAAP or applicable Law;
(n) any material change in the prices charged for the products and services relating to the Capitol Adhesives Business or any agreement to do so with any Capitol Adhesives Material Customer or any material change in the prices paid for products and services relating to the Capitol Adhesives Business or any agreement to do so with any Capitol Adhesives Material Supplier;
(o) any sale, assignment, transfer, lease or license of any equity interest in intangible property relating to the Capitol Adhesives Business;
(p) any other Personamendment, modification or termination of a Capitol Adhesives Material Contract; or
(wq) any agreement by VGX agreement, whether oral or any of its Subsidiaries written, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance SheetExcept as set forth on Schedule 3.05, VGX and from December 31, 2001 each of its Subsidiaries the Sellers has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, operations related to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case Purchased Assets in the ordinary course of business and consistent with past practicespractice, and there has not been any:
(a) event, change, effect or pursuant development that, individually or in the aggregate, has had or could reasonably be expected to existing contractual commitments)have a Material Adverse Effect on the Purchased Assets, including it being understood that the making of any loan Sellers continue to such person (other than advancement of routine travel, entertainment and other business expenses)incur losses from operations;
(gb) any transaction of the type described change in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required practices by concurrent changes in US GAAPthe Sellers affecting the Purchased Assets;
(jc) waiver of any material revaluation by VGX right under any Assumed Contract or any of its Subsidiaries of any of its assets, including writing down Permit relating to the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessPurchased Assets;
(kd) any establishmentsale, termination lease, license or amendment other disposition of any VGX Employee Plan;
(l) any material increase of severance or termination pay subjecting to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, Liens any of VGX Capital Stock the Purchased Assets, except sales of Inventory and excess or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock obsolete assets in the ordinary course of business under consistent with past practice but excluding the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants sale or other rights disclosed pursuant to Section 2.2disposition of any machinery and equipment set forth in Schedule 1.01(a)(ii);
(pe) acquisition or agreement to acquire any splitassets for use that are material, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material , to VGXSellers, except purchases of Inventory or other assets in the ordinary course of businessbusiness consistent with past practice;
(ti) waiver of any indebtedness incurred claims or guaranteed by VGX rights related to Purchased Assets or (ii) waiver of any benefits of, or agreement to modify in any manner, any confidentiality, standstill or similar agreement to which any of its Subsidiaries for borrowed money or any commitment the Sellers is a party and relating to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessPurchased Assets;
(ug) termination or failure to renew any commencement Assumed Contract, or termination or failure to renew, or receipt of Legal Proceedings by VGX any written threat (that was not subsequently withdrawn) to terminate or failure to review, any of its SubsidiariesPermit or Product Registration;
(vh) termination or failure to renew or to timely pay any acquisition fees, annuities or disposition renewals payable to any Governmental Entity in respect of any equity interest in any other Personof the Intellectual Property, Product Registrations or Permits; or
(wi) any agreement by VGX event, change, effect or any of its Subsidiaries development that would cause the Strains not to do any of the foregoingbe viable and in good order.
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as set forth on Schedule 6.7 since December 31, 2011, there has not been:
6.7.1. an amendment to Seller’s Certificate of Incorporation or Bylaws, or merger with or into or consolidation with any person, or change or agreement to change in any material manner the date character of VGX Balance Sheet, VGX and each the GlobalTrak Business;
6.7.2. a waiver of its Subsidiaries has conducted its business any material right under any Assumed Contract except in the ordinary course consistent Ordinary Course of Business;
6.7.3. any loan or advance made to any of Seller’s Current Employees (other than travel and expense advances made in the Ordinary Course of Business), or any other loan or advance relating to the GlobalTrak Business made otherwise than in the Ordinary Course of Business;
6.7.4. any documents or written representations filed by Seller with past practice andthe United States Patent and Trademark Office or the patent or trademark office of any foreign country which in any way relate to the GlobalTrak Business or the Purchased Assets;
6.7.5. any material changes to Seller’s GlobalTrak Business policies, since such dateincluding, but not limited to advertising, marketing, pricing, purchasing, personnel, sales, budget or product acquisition policies;
6.7.6. any payment, direct or indirect, of any of Seller’s Liabilities which in any way relate to the GlobalTrak Business or the Purchased Assets more than thirty (30) days before the same became due in accordance with its terms or otherwise than in the Ordinary Course of Business;
6.7.7. any material loss (whether by damage or destruction, in the nature of a casualty loss or otherwise, and whether covered by insurance or not), affecting any Purchased Asset or the GlobalTrak Business;
6.7.8. any actual or threatened strike or other material labor trouble or dispute relating to the GlobalTrak Business;
6.7.9. any loss or threatened loss (in writing) of any material Permit enjoyed or formerly held or enjoyed by Seller which in any way relates to the GlobalTrak Business or the Purchased Assets;
6.7.10. to the Seller’s actual knowledge, any Law or Order adopted or rescinded which Seller has determined would reasonably be expected to have a Material Adverse Effect (which shall not include any Law or Order that affects the industries in which the GlobalTrak Business operates and does not have a materially disproportionate impact on the GlobalTrak Business);
6.7.11. the creation or imposition of any Lien upon any of the Purchased Assets, except for Permitted Liens;
6.7.12. any sale, transfer or other disposition of any material asset of the GlobalTrak Business, excluding sales of Inventory or Products in the Ordinary Course of Business, or any cancellation of any material debt or claim of the GlobalTrak Business, except in the Ordinary Course of Business;
6.7.13. any material increase in, or any commitment to materially increase (oral or written), (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee compensation or other third party having business relations with VGX direct or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation indirect remuneration payable to any officer or director employee of VGX the GlobalTrak Business, (ii) any bonus, incentive or deferred compensation, profit sharing, retirement, pension, group insurance, death benefit or other than increases fringe benefit plan, trust agreement or arrangement, in each case in connection with general performance reviews and annual salary increases in each case in relating to the ordinary course of business and consistent with past practices, GlobalTrak Business or pursuant (iii) the benefits payable under any employment or consulting agreement relating to existing contractual commitments), including the making of any loan to such person (GlobalTrak Business other than advancement of routine travel, entertainment and other business expenses);
(gA) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment such contributions to a Plan or exclusive license of any properties Benefit Arrangement that are regularly scheduled or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as are required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option such Plan or purchase agreementsBenefit Arrangement or by applicable law, or (B) any such increases in the Ordinary Course of Business;
6.7.14. any termination (owhether by discharge, retirement or otherwise) of any issuance officer or reservation for issuance by VGX employee of the GlobalTrak Business or any notice to so terminate given to or received by any of its Subsidiaries ofthe foregoing;
6.7.15. any termination or failure to renew, or commitment receipt of it a written threat to issue terminate or reserve refusal to renew any material contract between Seller and any customer or material supplier of goods or services to the GlobalTrak Business;
6.7.16. any engagement by the GlobalTrak Business in any other material transaction other than in the Ordinary Course of Business;
6.7.17. any material change in or material noncompliance in the operation of the GlobalTrak Business with any accounting principle or practice of Seller;
6.7.18. except for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it ofRetained Liabilities, any shares of capital stock indebtedness, liability or other securities obligation (whether absolute, accrued, contingent or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization otherwise) incurred by it of any subscriptions, rights, warrants or options Seller related to acquire any shares of capital stock the GlobalTrak Business or any securities convertible transaction entered into capital stockby Seller relating to the GlobalTrak Business, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course Ordinary Course of business under the VGX Option PlanBusiness, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification material guarantee by Seller of any of VGX Capital Stock indebtedness, liability or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance obligation of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or person related to the capital stock of any of its SubsidiariesGlobalTrak Business;
(q) 6.7.19. any amendment of the Certificate of Incorporation material capital expenditure, addition or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans improvement made or agreed committed to be made by VGX or on behalf of the GlobalTrak Business with respect to any single expenditure, addition or improvement of its Subsidiaries, the GlobalTrak Business;
6.7.20. any write-off as uncollectible of any Receivables other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course Ordinary Course of businessBusiness;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) 6.7.21. any agreement or commitment by VGX Seller or any of its Subsidiaries the GlobalTrak Business to do any of the foregoing; or
6.7.22. any Material Adverse Change.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business Except as disclosed in the ordinary course consistent with past practice andWeFusion Disclosure Schedule, and except as specifically contemplated by the Transaction Documents, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI the WeFusion Interim Balance Sheet Date there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveoccurred:
(a) any change in the condition (financial or otherwise), properties, assets, liabilities, business operations, results of operations that could reasonably constitute a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation amendments or termination by VGX changes in WeFusion's Certificate of Incorporation or any of its Subsidiaries of any executive officer or director;Bylaws; 15
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (that could reasonably constitute a Material Adverse Effect, whether or not covered by insurance) materially and adversely affecting any of the material assets, insurance or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiariesnot;
(ed) any commencement redemption, repurchase or other acquisition of Legal Proceedings against VGX or any shares of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX WeFusion Capital Stock by WeFusion (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment arrangements with terminated employees or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Propertyconsultants), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities stock or property) in with respect of, any of VGX to WeFusion Capital Stock or any capital stock of its SubsidiariesStock;
(ne) any purchase, redemption increase in or other acquisition modification of the compensation or benefits payable or to become payable by VGX or WeFusion to any of its Subsidiaries of any of VGX Capital Stock directors, employees or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsconsultants;
(of) any modification of any term of benefits payable under any Employee Benefit Plan;
(g) any acquisition or sale of a Material amount of property or assets of WeFusion other than in the ordinary course of business consistent with past practice;
(h) any (i) incurrence, assumption or guarantee by WeFusion of any debt for borrowed money; (ii) issuance or reservation for issuance by VGX or sale of any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares debt securities of capital stock WeFusion; or (iii) issuance or sale of options or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options rights to acquire any shares from WeFusion, directly or indirectly, debt securities of capital stock WeFusion or any securities convertible into capital stock, other than or exchangeable for any such debt securities;
(i) the issuanceany creation or assumption by WeFusion or any Stockholder of any mortgage, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Optionspledge, (ii) the granting of options to purchase VGX Common Stock material security interest or lien or other encumbrance on any asset, except for liens for taxes not yet due or except in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 which are not Material individually or $1,000,000 in the aggregate;
(sj) any cancellation by VGX or any of its Subsidiaries making of any indebtedness loan, advance or waiver capital contribution to or investment in any person other than travel loans or other loans or advances made in the ordinary course of business of WeFusion;
(k) any entering into, amendment of, relinquishment, termination or non-renewal by WeFusion of any rights material to VGXcontract, lease transaction, commitment or other right or obligation, except for purchase and sale commitments entered into in the ordinary course of business, consistent with past practice;
(tl) any indebtedness incurred transfer or guaranteed by VGX or any grant of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries a right under the WeFusion IP Rights (as such term is defined in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessSection 3.18 hereinafter);
(um) any commencement labor dispute or charge of Legal Proceedings unfair labor practice (other than routine individual grievances), any activity or proceeding by VGX a labor union or representative thereof to organize any employees of WeFusion or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personcampaign being conducted to solicit authorization from employees to be represented by such labor union; or
(wn) any agreement or arrangement made by VGX WeFusion to take any action which, if taken prior to the date hereof, would have made any representation or any of its Subsidiaries to do any warranty set forth in this Agreement untrue or incorrect as of the foregoing.date when made unless otherwise disclosed. 16
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX the Latest Balance Sheet, VGX and each of its Subsidiaries except as set forth on Schedule 5.6, the Business has been conducted its business only in the ordinary course of business consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any change, event or effect that, individually or in the aggregate with other changes, events or effects, has resulted in, or would reasonably be expected to result in, a Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) material change in any resignation method of accounting or termination accounting practice for the Business, except as required by VGX GAAP or any of its Subsidiaries of any executive officer or directoras disclosed in the notes to the Financial Statements;
(c) any written notice material change in cash management practices and policies, practices and procedures with respect to (i) collection of any actual Accounts Receivable, (ii) establishment of reserves for uncollectible Accounts Receivable, (iii) accrual of Accounts Receivable, (iv) inventory control, (v) prepayment of expenses, (vi) payment of trade accounts payable, (vii) accrual of other expenses or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any (viii) deferral of its Subsidiariesrevenue and acceptance of customer deposits;
(d) entry into any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its SubsidiariesContract that would constitute a Material Contract;
(e) any commencement transfer, assignment, sale or other disposition of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX the Acquired Assets shown or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase reflected in the compensation payable to any officer or director Latest Balance Sheet, except for the sale of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case Inventory in the ordinary course of business and consistent with past practicesthe disposition of obsolete, damaged or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation Sworn-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses out assets in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregatebusiness;
(if) amendment, termination or waiver of any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable rights constituting Acquired Assets other than in the ordinary course of business;
(g) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Assigned Intellectual Property or Intellectual Property Contracts included in the Acquired Assets;
(h) material damage, destruction or loss, or any material interruption in use (other than in the ordinary course of business) of any significant asset or property included in the Acquired Assets, whether or not covered by insurance;
(i) acceleration, termination, material modification to or cancellation of any Material Contract or material Permit;
(j) capital expenditures which, in the aggregate, would exceed $500,000 and which would constitute an Assumed Liability;
(k) any establishment, termination or amendment imposition of any VGX Employee PlanEncumbrance upon any of the Acquired Assets other than Permitted Encumbrances;
(l) (i) grant of any material bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of severance any employees, independent contractors or termination pay consultants of the Business, other than as provided for in any written agreements or required by applicable Law, or (ii) action to accelerate the vesting or payment of any employee compensation or benefit for any employee, consultant or independent contractor of VGX or any Subsidiary the Business (other than as required pursuant to the terms of VGXthe Seller Plans);
(m) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any declarationemployee, setting aside independent contractor or payment consultant of any dividend onthe Business, (ii) Seller Plan (except as otherwise required pursuant to the terms of the Seller Plans or as required by Law), or (iii) collective bargaining or other distribution (agreement with a Union, in each case whether in cash, stock, equity securities written or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiariesoral;
(n) any purchase, redemption loan to (or other acquisition by VGX or any of its Subsidiaries forgiveness of any loan to) any employee of VGX Capital Stock the Business, or entry into any other securities transaction with, any employees of VGX the Business affecting the Business or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsAcquired Assets;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it adoption of any subscriptionsplan of merger, rightsconsolidation, warrants reorganization, liquidation or options to acquire dissolution or filing of a petition in bankruptcy under any shares provisions of capital stock federal or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant state bankruptcy Law or consent to the exercise filing of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business any bankruptcy petition against it under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;any similar Law; or
(p) except for this Agreement and the Ancillary Agreements, any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries Contract to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paperweight Development Corp)
Absence of Certain Changes or Events. Since the date of VGX Balance SheetDecember 31, VGX 2010, Seller and each of its Subsidiaries has have conducted its business their respective businesses in the ordinary course consistent with their past practice practices and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to except as set forth in Section 3.7 of the Knowledge of VGXSeller Disclosure Schedule, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any change in the financial condition, properties, assets, liabilities, business or results of their operations or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development on or prior to December 31, 2010) to the Knowledge of Seller which, individually or in the aggregate, has had, or would reasonably be expected to have, a Seller Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation material Encumbrance placed on any of the properties of Seller or termination any of its Subsidiaries, other than Permitted Encumbrances or Encumbrances incurred in the course of the ordinary operation of Seller or its Subsidiaries, as applicable, consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of Seller or any of its Subsidiaries (except for dividends or other distributions by VGX any direct or indirect wholly owned Subsidiary to Seller or to any wholly owned Subsidiary of Seller), or any repurchase, redemption or other acquisition by Seller or any of its Subsidiaries of any executive officer or director;
(c) any written notice outstanding shares of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee capital stock or other third party having business relations with VGX securities of Seller or any of its Subsidiaries;
(d) any damage, destruction material change in any method of accounting or loss (whether or not covered accounting practice by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX Seller or any of its Subsidiaries;
(e) (i) any commencement increase in the compensation payable or to become payable to its officers or management employees (except for increases in the ordinary course of Legal Proceedings against VGX business, consistent with past practice) or (ii) any establishment, adoption, entry into or amendment of any collective bargaining, bonus, profit sharing, thrift, compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Laws, including Section 409A of the Code;
(f) (i) any claim of unfair labor practices involving Seller or any of its Subsidiaries, and no Person has notified VGX or (ii) any bonus payment or arrangement made to or with any of Seller’s or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)Subsidiaries’ employees;
(g) any transaction resignation, termination or removal of any member of senior management or any key supervisory personnel of Seller or any of its Subsidiaries or material loss of personnel of Seller or any of its Subsidiaries or material change in the terms and conditions of the type described in Item 404(a) of Regulation S-K employment of the rules and regulations senior management or key supervisory personnel of the Securities and Exchange Commission (the "SEC")Seller or any of its Subsidiaries;
(h) any saleTax election; any entry into a Tax allocation agreement, leaseTax sharing agreement, license, assignment Tax indemnity agreement or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than closing agreement with respect to tangible assets transactions involving less than $500,000 in Taxes; any one case settlement or $1,000,000 in compromise of any Tax liability, claim, notice, audit report or assessment; any surrender of any right to claim a Tax refund; or any consent to any extension or waiver of any statute of limitations relating to Taxes which would have the aggregateeffect of materially increasing the Tax liability of Seller or its Subsidiaries for any taxable period occurring after the Closing Date;
(i) any material change by VGX amendment to the governing documents of Seller or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPSubsidiaries;
(j) any material revaluation by VGX sale, assignment, transfer or any of its Subsidiaries license of any of Intellectual Property or other intangible assets owned by Seller or its assetsSubsidiaries, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than licenses to customers in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000disposition, or any loans made agreement or agreed to be made by VGX other arrangement for the purchase, sale or other disposition, of any material tangible properties or assets of Seller or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the course of business;
(l) entered into, amended or terminated any lease, contract, agreement, commitment or any other transaction providing for payments in excess of $100,000 in the aggregate or any Seller Contract;
(m) any payment or discharge of a material Encumbrance or liability of Seller or any of its Subsidiaries which was not shown on the balance sheet included in the 2010 Financial Statements or incurred in the ordinary course of business thereafter;
(n) any other transaction entered into by Seller or any of its Subsidiaries other than transactions in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(wo) any agreement by VGX or any of its Subsidiaries to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Ansys Inc)
Absence of Certain Changes or Events. Since the date of VGX Balance SheetJanuary 1, VGX and 2002, except as set forth on Schedule 3.6, each of its Subsidiaries the Companies has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case only in the ordinary course of business and consistent with past practicespractice and there has not been any Material Adverse Effect or any development or event which could reasonably be expected to have, individually or pursuant in the aggregate, a Material Adverse Effect. Without limiting the foregoing, except as set forth in Schedule 3.6 and except for the sale of Arvida Mortgage to existing contractual commitments)the Mortgage Purchaser, including since January 1, 2002, none of the making Companies has:
(a) declared, set aside or paid any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any loan class or series of its capital stock or other interests;
(i) sold, leased, transferred or disposed of any assets or rights, other than assets or rights disposed of in the ordinary course of business consistent with past practice and not individually or in the aggregate material, (ii) incurred any Lien upon its assets, other than Permitted Liens, (iii) acquired or leased any assets or rights other than in the ordinary course of business consistent with past practice that individually or in the aggregate would not be material;
(c) paid, discharged or satisfied any liability, obligation or Lien, other than payment, discharge or satisfaction of (i) Indebtedness as it matured and became due and payable or (ii) liabilities, obligations or Liens in the ordinary course of business consistent with past practice;
(d) changed any of the accounting or tax principles, practices or methods or changed reserve policies or materially changed reserves;
(i) made any change in the compensation payable or to such person become payable to any of its officers, directors, employees, agents, consultants or sales associates (other than advancement general increases in wages or salaries to employees who are not officers or directors in the ordinary course consistent with past practice), or to Persons providing management services, (ii) entered into or amended any employment, severance, consulting, termination or other agreement or employee benefit plan or made any loans to any of routine travelits officers, entertainment directors, employees, Affiliates, agents, consultants or sales associates or (iii) made any change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(i) made any accrual or commitment for future payment of any pension, retirement allowance, unused vacation days or other employee benefit to any officer, director, employee, sales associate or Affiliate, except payments and accruals made in the ordinary course consistent with past practice; (ii) adopted any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other business expenses)employee benefit plan, agreement or arrangement, or any employment or consulting agreement, or made any payments or grants in relation to the foregoing other than in the ordinary course consistent with past practice; or (iii) amended in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(g) other than compensation or advances of expenses in the ordinary course consistent with past practice, made any transaction payments, loans, advances or other distributions to, or entered into any transaction, agreement or arrangement with, any of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC")its Affiliates, officers, directors, employees, agents, consultants or sales associates, stockholders or their Affiliates;
(h) made or committed the Company to make any salecapital expenditures, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible except as set forth in the 2002 business plan (including, without limitation, Intellectual Propertyset forth on Schedule 3.6(h), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses and otherwise in the ordinary course consistent with past practice not in excess of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case 25,000 individually, or $1,000,000 100,000 in the aggregate;
(i) settled or compromised any material change by VGX Tax liability or agreed to any adjustment of its Subsidiaries in its accounting methods, principles any Tax attribute or practices, except as required by concurrent changes in US GAAPmade any election with respect to Taxes;
(j) made any material revaluation by VGX or any of change in its Subsidiaries of any of its assetsworking capital practices generally, including writing down the value accelerating any collections of capitalized inventory or writing off notes cash or accounts receivable or deferring payments or accruals;
(k) incurred any material liability other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Planbusiness consistent with past practice;
(l) had a judgment entered or settled any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declarationLitigation resulting in a loss, setting aside or payment of any dividend on, or other distribution (whether in cashcost, stockafter receipt of insurance payments, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually 25,000 individually, or $1,000,000 100,000 in the aggregate;
(sm) altered through merger, liquidation, reorganization, restructuring or in any cancellation by VGX other material fashion its corporate structure or ownership or amended its Organizational Documents in any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of businessrespect;
(tn) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or amended in an adverse manner any of its Subsidiaries in excess of $500,000material agreement which had non-competition, geographical restriction or any loans made similar covenants relating to the Business or agreed to that otherwise would be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personmaterial; or
(wo) any agreement by VGX or any of its Subsidiaries agreed to do take any of the foregoingforegoing actions or any action which would reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (St Joe Co)
Absence of Certain Changes or Events. Since Except as set forth on Schedule 3.8, since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI Unaudited Financial Statements there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect on VGX on any change in Seller's condition (financial or otherwise), assets, liabilities, working capital, reserves, earnings, business or prospects, except for changes in the ordinary course of its Subsidiariesbusiness which changes have not, individually or in the aggregate, been materially adverse;
(b) any resignation sale, assignment or termination by VGX or transfer of any of its Subsidiaries the assets of Seller used in connection with the Business, which is material singly or in the aggregate, other than in the ordinary course of business, or discontinuance of any executive officer or directorservice provided by the Business;
(c) any written notice cancellation of any actual indebtedness or threatened termination by waiver of any material customerrights of substantial value to Seller, supplierwhether or not in the ordinary course of business, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesrespect to the Business;
(d) amendment, cancellation or termination of any Contract, license or other instrument required to be set forth on Schedules 3.13 or 3.16;
(e) capital expenditure or the execution of any lease or any incurring of liability therefor, involving payments, in the aggregate, or at an annualized rate, of $5,000 or more;
(f) failure to pay any obligation of Seller, except where such failure would not have a Seller Material Adverse Effect;
(g) failure to operate the Business in the ordinary course;
(h) change in accounting methods or practices by Seller affecting its assets, liabilities or business (whether for accounting or tax purposes);
(i) revaluation by Seller of any of its assets used in connection with the Business, including without limitation, writing off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(j) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessAcquired Assets;
(k) any establishmentmortgage, termination pledge, grant or amendment creation of any VGX Employee PlanEncumbrance on any Acquired Asset;
(l) any material increase change in the collection, payment or credit experience, accounting practices, procedures or methods of severance Seller with respect to the Business or termination pay to any employee in the cash management practices of VGX or any Subsidiary Seller in the operation of VGXthe Business;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries Seller for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries Seller in excess of $500,000connection with the Business, or any loans made or agreed to be made by VGX Seller in connection with the Business;
(n) there has been no material changes in the amount or any scope of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable coverage of insurance now carried by Seller in connection with the Business;
(o) liabilities incurred or assumed by Seller in connection with the Business involving $5,000 or more except in the ordinary course of businessbusiness and consistent with past practice, or any increase or change in any assumptions underlying or methods of calculating any bad debt, contingency or other reserves, except as set forth on Schedule 3.8;
(up) payment, discharge or satisfaction of any commencement liabilities with respect to the Business in excess of Legal Proceedings by VGX $5,000, other than the payment, discharge or any satisfaction in the ordinary course of its Subsidiariesbusiness and consistent with past practice of liabilities that are reflected or reserved against in the Unaudited Financial Statements or incurred in the ordinary course of business and consistent with past practice since the date of the Unaudited Financial Statements;
(vq) any acquisition agreement or disposition of any equity interest in any other Person; or
(w) any agreement commitment by VGX or any of its Subsidiaries Seller to do any of the foregoing; or
(r) other event or condition of any character (other than acts of God or general economic or political conditions) which in any one case or in the aggregate has materially and adversely affected, or any event or condition (other than acts of God or general economic or political conditions) which it is reasonable to expect will, in any one case or in the aggregate, affect the Acquired Assets or materially and adversely affect in the future, the condition (financial or otherwise), assets, liabilities, working capital, reserves, earnings, business or prospects of Seller (including, without limitation, Seller's relationships with its customers).
Appears in 1 contract
Absence of Certain Changes or Events. Since Except as set forth in any Schedule delivered to the Purchaser pursuant to this Section 3 or except as contemplated by this Agreement, since the date of VGX Balance Sheetthe Interim Financial Statements, VGX and each to the best of its Subsidiaries the Shareholders' knowledge, the Company has conducted its business in the ordinary course consistent with past practice and, since such date, not:
(i) with respect issued, delivered or agreed to VGX issue or deliver any stock, bonds or other corporate securities (whether authorized and its Subsidiaries unissued or held in the treasury) or granted or agreed to grant any options, warrants or other than VGXI there has not been or rights calling for the issuance thereof;
(ii) with respect borrowed or agreed to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in borrow any management funds or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsincurred, or become subject to, any material portion of the assets, of VGX obligation or any of its Subsidiaries liability (absolute or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(econtingent) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case except in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)in customary amounts;
(giii) paid any transaction of the type described in Item 404(aobligation or liability (absolute or contingent) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses except in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregatecustomary amounts;
(iiv) paid any material change obligation or liability (absolute or contingent) other than current liabilities reflected in or shown on the Company's Financial Statements (or the notes thereto) and obligations or liabilities incurred since the date thereof and permitted to be so incurred by VGX or any the foregoing clause (ii) of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPthis Section (e);
(jv) except as otherwise permitted herein, declared or made, or agreed to declare or make, any material revaluation by VGX payment of dividends or distribution of any assets of any kind whatsoever to the Share holders, or purchased or redeemed any shares of its Subsidiaries of capital stock;
(vi) except as otherwise permitted herein, sold or transferred, or agreed to sell or transfer, any of its assets, including writing down the value of capitalized inventory properties or writing off notes or accounts receivable other than rights (except sales in the ordinary course of business) or canceled or agreed to cancel, any debts or claims;
(kvii) entered or agreed to enter into any establishmentagreement or arrangement granting any preferential rights to purchase substantially all of the assets, termination properties or amendment rights of the Company (including management and control thereof), or requiring the consent of any VGX Employee Planparty to the transfer and assignment of such assets, properties or rights (or changes in management or control thereof), or providing for the merger or consolidation of the Company with or into another corporation;
(lviii) suffered any material increase losses or waived any rights of severance or termination pay to any employee of VGX or any Subsidiary of VGXmaterial value;
(mix) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business, made or permitted any amendment or termination of any contract, agreement or license to which it is a party;
(tx) except for the discretionary merit bonuses to those Company employees set forth on SCHEDULE 2.1(C), made any indebtedness incurred accrual or guaranteed arrangement for a payment of bonuses or special compensation of any kind or any severance or termination pay to any present or former officer or employee;
(xi) except for the discretionary merit bonuses to those Company employees set forth on SCHEDULE 2.1(C), increased the rate of compensation payable or to become payable by VGX or it to any of its Subsidiaries for borrowed money officers or any commitment to borrow money entered into by VGX or any of its Subsidiaries key employees compensated at a rate in excess of $500,00010,000.00 per annum; or made any increase in any profit sharing, bonus, incentive, deferred compensation, insurance, pension, retirement or other employee benefit plan, payment or arrangement made to, for or with any loans made such officers or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businesskey employees;
(uxii) except for the verbal commitment of the Company to purchase a particular lathe in late December 1997 at a cost of approximately $15,000.00 for which no purchase order was issued, made any commencement of Legal Proceedings by VGX capital expenditures or any commitments therefor aggregating more than $10,000.00 or committed to purchase inventories, parts, supplies or other items in excess of its Subsidiariesnormal, ordinary and usual requirements or at excessive prices, all computed based on historical practices of the Company;
(vxiii) experienced any acquisition or disposition of any equity interest in any other Personsignificant labor trouble; or
(wxiv) suffered any agreement damage, destruction or loss, whether or not covered by VGX insurance, which materially and adversely affects its assets or business, or had any material adverse change in the business, operations, financial condition or prospects of its Subsidiaries the Company. Between the date of the Interim Financial Statements and the Closing Date, the Shareholders shall not permit the Company to do any of the foregoingthings listed in Clauses (i) through (xii) of this Section (e) without the prior written consent of the Purchaser, which consent will not be unreasonably withheld, except as otherwise permitted by this Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice andExcept as set forth on SCHEDULE 4.5, since such dateDecember 31, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1996, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX on any change in the financial condition, assets, operations, properties, liabilities, earnings or business of its SubsidiariesSellers which has been or will be, individually or in the aggregate with other changes, materially adverse to Sellers or the Business;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or casualty loss (whether or not covered by insurance) materially and adversely affecting the financial condition, assets, operations, properties, earnings of Sellers or the Business;
(c) any increase in the compensation payable or to become payable by Sellers to any director, officer, employee or agent of Sellers other than routine increases made in the material assetsordinary course of business consistent with the past practice of Sellers, or any material portion bonus, incentive compensation, service award or other like benefit, granted, made or accrued, contingently or otherwise, to or to the credit of the assetsany of such officer, of VGX employee or agent, or any of its Subsidiaries employee welfare, pension, retirement or materially similar payment or arrangement made or agreed to by Sellers with respect to any such officer, employee or agent, except pursuant to the existing plans and adversely affecting the business of VGX arrangements described in SCHEDULE 4.15;
(d) any labor trouble, or any controversies or unsettled grievances pending or, to be best of its SubsidiariesSellers' and Stockholders' knowledge, threatened, between Sellers and any of their employees or a collective bargaining organization representing or seeking to represent such employees, or any entrance into any collective bargaining agreement by Sellers with respect to any such employees;
(e) any commencement addition to, or modification of, any profit sharing, bonus, deferred compensation, insurance, pension, retirement or other employee benefit plans, arrangements and practices described on SCHEDULE 4.15, other than accruals made for Sellers' fiscal years 1997 in accordance with the normal practices of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal ProceedingSellers;
(f) any material increase in the compensation payable to any officer sale, assignment, license or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making transfer of any loan to such person (other than advancement asset, property or right of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), Sellers or any encumbrance (excluding Permitted Liens) conduct of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable Sellers other than in the ordinary course of business;
(kg) any establishmentcapital expenditure or commitment to make a capital expenditure (exclusive of expenditures for repair or maintenance of equipment in the ordinary course of business) or the execution of any lease or similar arrangement (except in the ordinary course of business) with respect to any aspect of the Business, or any incurring of liability therefor; 23063 v7 15
(h) any incurring of any extraordinary loss or the knowing waiver of any right of substantial value by Sellers in connection with any aspect of the Business;
(i) any cancellation, termination or amendment of any VGX Employee Planmaterial contract, agreement, license or other instrument relating to the Business;
(j) any change in Sellers' accounting practices;
(k) any failure on the part of Sellers to operate the Business in the ordinary course so as to preserve their business organizations intact, including the services of their present officers and employees and the goodwill of Sellers' suppliers, customers and others having business relations with them;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition transaction by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant Sellers relating to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except Business not in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(wm) any agreement by VGX or any of its Subsidiaries Sellers to do any of the foregoing; or
(n) any other event or condition of any character which, in any one case or in the aggregate, has adversely and materially affected, or any event or condition which might reasonably be expected, in any one case or in the aggregate, to adversely and materially affect the financial condition, assets, operations, properties, liabilities, earnings of Sellers or the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (California Pro Sports Inc)
Absence of Certain Changes or Events. Since the date of VGX Interim Balance Sheet, VGX and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGXSheet Date, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveany:
(a) any Material Adverse Effect on VGX on any actual or threatened material adverse change in the financial condition, working capital, shareholders’ equity, assets, Liabilities, reserves, revenues, income earnings, prospects or Business of its SubsidiariesSeller;
(b) any resignation change in accounting methods, principles or termination practices by VGX Seller affecting the Assets, its Liabilities or any of its Subsidiaries of any executive officer or directorthe Business;
(c) any written notice revaluation by Seller of any actual of the Assets, including without limitation writing down the value of inventory or threatened termination by any material customer, supplier, partner, licensor, licensee writing off notes or other third party having business relations with VGX or any of its Subsidiariesaccounts receivable;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX Assets or any of its Subsidiariesthe Business;
(e) cancellation of any commencement indebtedness or waiver or release of Legal Proceedings against VGX any right or any claim of Seller relating to its Subsidiaries, and no Person has notified VGX activities or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence properties which had or will have a Legal Proceedingmaterial adverse effect on the Assets or the Business;
(f) any material increase in the rate of compensation payable or to become payable to any officer or director other employee of VGX (Seller or any consultant, Representative or agent of Seller, including without limitation the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, other than increases in each case in connection with general performance reviews and annual salary increases in each case increases, payments, grants or accruals made in the ordinary course of business and consistent in accordance with past practices, or pursuant to existing contractual commitments), including the making normal practices of any loan to such person (other than advancement of routine travel, entertainment and other business expenses)Seller;
(g) adoption of, addition to, modification of, or contribution to any transaction of the type Employee Plan, arrangement, or practice described in Item 404(athe Disclosure Schedule other than (i) additions, modifications or contributions made in the ordinary course of Regulation S-K business and in accordance with the normal practices of the rules and regulations of the Securities and Exchange Commission Seller or (the "SEC")ii) as required by applicable law;
(h) any saleadverse change in employee relations which has or is reasonably likely to have adverse effect on the productivity, leasethe financial condition, licenseresults of operations or Business of Seller or the relationships between the employees of Seller and the management of Seller;
(i) amendment, assignment cancellation or exclusive license termination of any properties or assetsContract, tangible or intangible commitment, agreement, Lease (including, without limitation, Intellectual Propertyexcept for Facility Leases as contemplated by Section 6.11), transaction or Permit relating to the Assets or the Business or entry into any encumbrance (excluding Permitted Liens) of any properties Contract, commitment, agreement, Lease, transaction or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses Permit which is not in the ordinary course of VGX's business business, including without limitation any employment or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAPconsulting agreements;
(j) mortgage, pledge or other encumbrance of any material revaluation by VGX Assets, except purchase money mortgages arising in the ordinary course of business;
(k) sale, assignment or any of its Subsidiaries transfer of any of its assetsthe Assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase incurrence of severance indebtedness by Seller for borrowed money or termination pay commitment to any employee of VGX borrow money entered into by Seller, or any Subsidiary of VGXloans made or agreed to be made by Seller, or indebtedness guaranteed by Seller;
(m) any declarationincurrence by Seller of Liabilities, setting aside or payment except Liabilities incurred in the ordinary course of any dividend onbusiness, or other distribution (whether increase or change in cash, stock, equity securities any assumptions underlying or property) in respect ofmethods of calculating, any doubtful account contingency or other reserves of VGX Capital Stock or any capital stock of its SubsidiariesSeller;
(n) any purchasepayment, redemption discharge or other acquisition by VGX or any of its Subsidiaries satisfaction of any Liabilities of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, Seller other than (i) the issuancepayment, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock discharge or satisfaction in the ordinary course of business under of Liabilities set forth or reserved for on the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants Interim Financial Statements or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except incurred in the ordinary course of business;
(to) capital expenditure by Seller, the execution of any indebtedness incurred Lease by Seller or guaranteed the incurring of any obligation by VGX Seller to make any capital expenditure or execute any Lease;
(p) failure to pay or satisfy when due any Liability of its Subsidiaries for borrowed money Seller, except where the failure would not have a material adverse effect on the Assets or any commitment the Business;
(q) failure of Seller to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable carry on diligently the Business in the ordinary course so as to keep available to Buyer the services of businessSeller’s employees, and to preserve for Buyer the Assets and the Business and the goodwill of Seller’s suppliers, customers, distributors and others having business relations with it;
(r) disposition or lapsing of any Proprietary Rights or any disposition or disclosure to any person of any Proprietary Rights not theretofore a matter of public knowledge;
(s) existence of any other event or condition which in any one case or in the aggregate has or might reasonably be expected to have a material adverse effect on the Assets or the Business;
(t) adoption or change in any election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, entering into any Tax allocation agreement, Tax ruling, Tax-sharing agreement, Tax indemnity agreement or closing agreement, settlement or compromise in respect of any claim, notice, audit report or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries Seller to do any of the foregoingthings described in the preceding clauses (a) through (t) other than as expressly provided for herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tessera Technologies Inc)
Absence of Certain Changes or Events. Since Except for transactions specifically contemplated in this Agreement, since the date of VGX the Company Balance Sheet, VGX and each neither the Company nor any of its Subsidiaries has conducted its business officers or directors in their representative capacities on behalf of the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approveCompany have:
(a) taken any Material Adverse Effect on VGX on action or entered into or agreed to enter into any of its Subsidiaries;
(b) any resignation transaction, agreement or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable commitment other than in the ordinary course of business;
(b) forgiven or canceled any indebtedness or waived any claims or rights of material value (including, without limitation, any indebtedness owing by any stockholder, officer, director, employee or affiliate of the Company);
(c) granted, other than in the ordinary course of business and consistent with past practice, any increase in the compensation of directors, officers, employees or consultants (including any such increase pursuant to any employment agreement or bonus, pension, profit-sharing, lease payment or other plan or commitment) or any increase in the compensation payable or to become payable to any director, officer, employee or consultant;
(d) suffered any change having a Company Material Adverse Effect;
(e) borrowed or agreed to borrow any funds, incurred or become subject to, whether directly or by way of assumption or guarantee or otherwise, any obligations or liabilities (absolute, accrued, contingent or otherwise) in excess of $25,000, except liabilities and obligations (i) that are incurred in the ordinary course of business and consistent with past practice or (ii) that would not be required to be reflected or reserved against in a balance sheet prepared in accordance with GAAP, or increased, or experienced any change in any assumptions underlying or methods of calculating, any bad debt, contingency or other reserves;
(f) paid, discharged or satisfied any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise) other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of claims, liabilities and obligations reflected or reserved against in the Company Balance Sheet or incurred in the ordinary course of business and consistent with past practice since the date of the Company Balance Sheet, or prepaid any obligation having a fixed maturity of more than 90 days from the date such obligation was issued or incurred;
(g) knowingly permitted or allowed any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge,
(h) purchased or sold, transferred or otherwise disposed of any of its material properties or assets (real, personal or mixed, tangible or intangible);
(i) disposed of or permitted to lapse any rights to the use of any trademark, trade name, patent or copyright, or disposed of or disclosed to any Person without obtaining an appropriate confidentiality agreement from any such Person any trade secret, formula, process or know-how not theretofore a matter of public knowledge;
(j) made any single capital expenditure or commitment in excess of $25,000 for additions to property, plant, equipment or intangible capital assets or made aggregate capital expenditures in excess of $25,000 for additions to property, plant, equipment or intangible capital assets;
(k) made any establishment, termination change in any method of accounting or amendment of any VGX Employee Planaccounting practice or internal control procedure;
(l) issued any material increase of severance capital stock or termination pay to any employee of VGX other securities, or any Subsidiary of VGX;
(m) any declarationdeclared, setting paid or set aside or for payment of any dividend on, or other distribution (whether in cash, respect of its capital stock, equity securities or property) in respect ofredeemed, any of VGX Capital Stock purchased or any capital stock of its Subsidiaries;
(n) any purchaseotherwise acquired, redemption directly or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it ofindirectly, any shares of capital stock or other securities of the Company, or obligations or securities convertible into or exchangeable for shares otherwise permitted the withdrawal by any of capital stock the holders of Company Capital Stock of any cash or other securitiesassets (real, personal or issuancemixed, sale tangible or authorization by it of any subscriptionsintangible), rightsin compensation, warrants indebtedness or options to acquire any shares of capital stock or any securities convertible into capital stockotherwise, other than (i) the issuance, delivery and/or sale payments of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock compensation in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2consistent with past practice;
(pm) paid, loaned or advanced any splitamount to, combination or reclassification sold, transferred or leased any properties or assets (real, personal or mixed, tangible or intangible) to any of the Company's stockholders, officers, directors or employees or any affiliate of any of VGX Capital Stock the Company's stockholders, officers, directors or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXemployees, except in compensation paid to officers and employees at rates not exceeding the ordinary course rates of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in compensation paid during the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personfiscal year last ended; or
(wn) agreed, whether in writing or otherwise, to take any agreement by VGX or any of its Subsidiaries to do any of the foregoingaction described in this Section 2.7.
Appears in 1 contract
Samples: Merger Agreement (Amazon Com Inc)
Absence of Certain Changes or Events. Since Except as set forth on Schedule 5.4, since the date Balance Sheet Date, there has not been any material adverse effect on the business, operations, results of VGX operations, assets, properties or financial condition of the Business; excluding (i) the failure of any of the employees of Sellers other than those listed on Schedule 7.6 to accept employment with the Buyer or FTI or (ii) the effect of any delisting of the capital stock of Nextera from the Nasdaq SmallCap Stock Market ("Material Adverse Effect"). Nextera has not declared, set aside or paid any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class, redemption or series of its capital stock or other equity interests. In addition to the foregoing, none of Sellers nor Nextera have:
(a) authorized or issued capital stock of Sellers or Nextera; granted any stock option or right to purchase shares of capital stock of Sellers or Nextera; issued any security convertible into such capital stock; granted of any registration rights; purchased, redeemed, retired, or otherwise acquired, by Sellers or Nextera, any shares of any such capital stock; or declared or paid any dividend or other distribution in respect of shares of such capital stock;
(i) sold, leased, transferred or disposed of any material assets or rights or (ii) acquired or leased any material assets or rights;
(c) paid, discharged or satisfied any material liability, obligation or lien with respect to underlying obligations, other than payment, discharge or satisfaction of (i) Indebtedness as it matured and became due and payable; (ii) liabilities, obligations or liens in the ordinary course of business consistent with past practice; or (iii) as otherwise specifically contemplated by this Agreement;
(d) materially (i) changed any of the accounting or tax principles, practices or methods or (ii) changed reserve policies or reserves;
(i) made any change in the compensation payable to any of its officers, directors, employees, consultants, agents or sales associates (other than general increases in wages to employees and/or payments to consultants, agents or sales associates in the ordinary course consistent with past practice), (ii) entered into or amended any material employment, severance, consulting, termination, other agreement or (iii) made any material change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(i) paid or made any accrual or arrangement for payment of any pension, retirement allowance, unused vacation days or other employee benefit to any officer, director, employee, sales associate or affiliate, except payments and accruals made in the ordinary course consistent with past practice; (ii) adopted or paid, granted, issued, accelerated or accrued salary or other payments or benefits which include any payment in equity or cash payments pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement except, in each case, in the ordinary course; or (iii) amended in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(g) made any borrowing or agreement to borrow funds by Sellers or incurred any other obligation or liability, contingent or otherwise, which would remain as a liability of the Business following the Closing, except liabilities reflected on the June Balance Sheet; or any endorsement, VGX and each assumption or guarantee of its Subsidiaries has conducted its business payment or performance of any loan or obligation of any other individual, firm, corporation or other entity which would remain as a liability of the Business following the Closing, except as reflected on the June Balance Sheet;
(h) made any mortgage, pledge, lien, security interest, hypothecation, charge or other encumbrance with respect to the Assets;
(i) made any material write downs of the value of any Asset or any material write downs as uncollectible of any accounts receivable or portion thereof;
(j) made any payments (other than compensation in the ordinary course consistent with past practice), loans, advances or other distributions to, or entered into any transaction, agreement or arrangement with, any affiliates, officers, directors, employees, sales associates, stockholders or their respective affiliates;
(k) made or authorized any capital expenditures, except in the ordinary course consistent with past practice and, since such date, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approve:
(a) any Material Adverse Effect on VGX on any of its Subsidiaries;
(b) any resignation or termination by VGX or any of its Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurancein excess of Twenty-Five Thousand Dollars ($25,000) materially and adversely affecting any of the material assets, individually or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
One Hundred Thousand Dollars (e$100,000) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(il) settled or compromised any material Tax liability or agreed to any adjustment of any material Tax attribute or made any election with respect to Taxes;
(m) made any material change by VGX or any of its Subsidiaries in its accounting methodsworking capital practices generally, principles including accelerating any collections of cash or practices, except as required by concurrent changes in US GAAPaccounts receivable or deferring payments or accruals;
(jn) incurred any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable liability other than in the ordinary course of business;
(ko) had a judgment entered or settled any establishmentLitigation resulting in a loss, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cashcost, stockafter receipt of insurance payments, equity securities individually or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course aggregate, in excess of business under the VGX Option Plan, and Twenty-Five Thousand Dollars (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2$25,000);
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiariesamended Sellers' or issuance Nextera's Formation Documents or authorization of issuance of altered through merger, liquidation, reorganization, restructuring or in any other securities in respect of, in lieu of fashion its respective corporate structure or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiariesownership;
(q) made any amendment of modification, waiver, change, amendment, release, rescission or termination of, or accord and satisfaction with respect to, any material contract, agreement, license or other instrument to which Sellers are a party, including all material customer/consulting agreements, other than any satisfaction by performance in accordance with the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except terms thereof in the ordinary course of business;
(tr) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or amended in an adverse manner any of its Subsidiaries in excess of $500,000agreement which had non-competition, geographical restriction or any loans made or agreed to similar covenants that would be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personmaterial; or
(ws) any agreement by VGX or any of its Subsidiaries agreed to do take any of the foregoingforegoing actions other than as permitted hereunder or any action which would reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Absence of Certain Changes or Events. Since the date of VGX Balance Sheet, VGX and each of its Subsidiaries PUBCO has conducted its business only in the ordinary course consistent with past practice andcourse, since and during such date, (i) with respect to VGX and its Subsidiaries other than VGXI period there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any change in the assets, liabilities, financial condition or operating results of PUBCO from that reflected in the financial statements contained in the SEC Reports, except changes in the ordinary course of business that have not caused, in the aggregate, a PUBCO Material Adverse Effect on VGX on any of its SubsidiariesEffect;
(b) any resignation damage, destruction or termination loss, whether or not covered by VGX or any of its Subsidiaries of any executive officer or directorinsurance, that would have a PUBCO Material Adverse Effect;
(c) any written notice waiver or compromise by PUBCO of any actual a valuable right or threatened termination by any of a material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiariesdebt owed to it;
(d) any damagesatisfaction or discharge of any lien, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assetsclaim, or encumbrance or payment of any material portion obligation by PUBCO, except in the ordinary course of business and the assets, satisfaction or discharge of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiarieswhich would not have a PUBCO Material Adverse Effect;
(e) any commencement of Legal Proceedings against VGX material change to a material Contract by which PUBCO or any of its Subsidiaries, and no Person has notified VGX assets is bound or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceedingsubject;
(f) any material increase change in the any compensation payable arrangement or agreement with any employee, officer, director or stockholder;
(g) any resignation or termination of employment of any officer of PUBCO;
(h) any mortgage, pledge, transfer of a security interest in or lien created by PUBCO with respect to any officer of its material properties or director of VGX (other than increases in each case in connection with general performance reviews assets, except liens for taxes not yet due or payable and annual salary increases in each case liens that arise in the ordinary course of business and consistent with past practices, that do not materially impair PUBCO’s ownership or pursuant to existing contractual commitments), including the making use of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties property or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change loans or guarantees made by VGX PUBCO to or for the benefit of its employees, officers or directors, or any Purchasers of its Subsidiaries in its accounting methodstheir immediate families, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than travel advances and other advances made in the ordinary course of its business;
(k) any establishment, termination or amendment of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(mj) any declaration, setting aside or payment or other distribution in respect of any dividend onof PUBCO’s capital stock, or any direct or indirect redemption, purchase, or other distribution (whether in cash, stock, equity securities or property) in respect of, acquisition of any of VGX Capital Stock or any capital such stock of its Subsidiariesby PUBCO;
(nk) any purchase, redemption alteration of PUBCO’s method of accounting or other acquisition by VGX or any the identity of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsauditors;
(ol) any issuance of equity securities to any officer, director or reservation for issuance by VGX or any of its Subsidiaries ofaffiliate, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock except pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital existing PUBCO stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(t) any indebtedness incurred or guaranteed by VGX or any of its Subsidiaries for borrowed money or any commitment to borrow money entered into by VGX or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of business;
(u) any commencement of Legal Proceedings by VGX or any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest in any other Personoption plans; or
(wm) any agreement arrangement or commitment by VGX or any of its Subsidiaries PUBCO to do any of the foregoingthings described in this Section 3.17.
Appears in 1 contract
Samples: Share Purchase Agreement (Smsa Kerrville Acquisition Corp.)
Absence of Certain Changes or Events. Since To Enterprises' Knowledge, except as disclosed on Schedule 5.22 to the date of VGX Balance SheetEnterprises Disclosure Letter and except as would not have a Material Adverse Effect on Enterprises and the Remaining Subsidiaries, VGX taken as a whole, or on TPIR, TPIE, TPII, and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practice andTPIR Subsidiaries, taken as a whole, since such dateSeptember 1, (i) with respect to VGX and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX1995, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX declaration or payment of dividends on any capital stock of its SubsidiariesEnterprises, any Subsidiary of Enterprises, TPIR, TPIE, TPII or any TPIR Subsidiary or any distribution with respect to, or in redemption of, any of the shares of capital stock of Enterprises, any Subsidiary of Enterprises, TPIR, TPIE, TPII or any TPIR Subsidiary;
(b) any resignation sale or termination by VGX transfer of any assets or properties of Enterprises, any Subsidiary of Enterprises, TPIR, TPIE, TPII or any TPIR Subsidiary except in the ordinary course of its Subsidiaries of any executive officer or directorbusiness consistent with past practice;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting the properties, assets, business or prospects of Enterprises, any Subsidiary of Enterprises, TPIR, TPIE, TPII or any TPIR Subsidiary;
(d) any Material Adverse Change in the condition (financial or otherwise) of properties, assets, liabilities, business or prospects of TPIR, TPIE, TPII and the TPIR Subsidiaries, taken as a whole, except as reflected in the Company Financial Information and except for declines in profitability subsequent to the date of the material assets, or any material portion Company Financial Information but prior to the date of the assets, this Agreement of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiarieswhich Shoney's has been made aware;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness of TPIR, TPIE, TPII or any TPIR Subsidiary consistent with past practice;
(f) any lease of personal or real property to or from any person, firm or entity with respect to which TPIR, TPIE, TPII or any TPIR Subsidiary is a party;
(g) any amendment of the charter or bylaws of TPIR, TPIE, TPII or any TPIR Subsidiary;
(h) the granting or filing of any lien, encumbrance or security interest against any of the shares of capital stock of either TPIR, TPIE, TPII or any TPIR Subsidiary or any of their respective properties or assets, real, personal or mixed, tangible or intangible;
(i) any payment, loan or advance of any amount to, or sale, transfer or lease of any properties or assets (real, personal or mixed, tangible or intangible) to, or execution of any agreement with, officers or directors of Enterprises, any of the Remaining Subsidiaries, TPIR, TPIE, TPII or any TPIR Subsidiary;
(j) any personal injury on any premises of TPIR, TPIE, TPII or any TPIR Subsidiary or in connection with their respective businesses that may give rise to a claim in excess of the applicable insurance coverage;
(k) any establishmentincrease in the compensation payable to or to become payable by TPIR, termination TPIE, TPII or amendment any TPIR Subsidiary to any officer, employee or agent of Enterprises, TPIR, TPIE, TPII or any VGX Employee PlanTPIR Subsidiary (including, without limitation, any increase in the discretionary matching under any 401(k) plan), except for normal compensation adjustments to salaries or wages to non-officers of TPIR, TPIE, TPII or any TPIR Subsidiary, and to officers of TPIR, TPIE, TPII or any TPIR Subsidiary as required by an applicable employment agreement, in each case made in the ordinary course of business consistent with past practice;
(l) any material increase payment, other than in the ordinary course of severance or termination pay to any employee business of VGX TPIR, TPIE, TPII or any TPIR Subsidiary consistent with past practice, under any insurance, pension or other benefit plan, program or arrangement made to, for or with any officer, employee or agent of VGXEnterprises, any of the Remaining Subsidiaries, TPIR, TPIE, TPII or any TPIR Subsidiary;
(m) any declarationchange in the method of accounting or accounting practice by TPIR, setting aside or payment of any dividend onTPIE, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock TPII or any capital stock of its SubsidiariesTPIR Subsidiary, except as required by generally accepted accounting principles;
(n) any purchase, redemption or other acquisition by VGX or any of its Subsidiaries of any of VGX Capital Stock or any other securities of VGX or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Subsidiaries' or issuance or authorization of issuance of any other securities certificates or coupons that would entitle the bearer thereof to receive a reduction in respect of, in lieu the price of or in substitution for any VGX Capital Stock or the capital stock of food and/or beverages consumed at any of its Subsidiaries;
(q) any amendment the Restaurants or 37 to receive such food and/or beverages free of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGXcharge, except in the ordinary course of businessbusiness consistent with past practice;
(to) any indebtedness incurred extension or guaranteed modification of any agreement required to be disclosed by VGX or Section 5.21;
(p) any investment of its Subsidiaries for borrowed money or any commitment to borrow money entered into surplus cash by VGX Enterprises or any of its Subsidiaries in excess of $500,000, or any loans made or agreed to be made by VGX or any of its Subsidiaries, investment other than reasonable travel and entertainment expense advances and trade accounts receivable in the ordinary course of businessa Cash Equivalent;
(uq) any commencement of Legal Proceedings by VGX agreement, whether in writing or otherwise, to take any of its Subsidiaries;
(v) any acquisition or disposition of any equity interest action described in any other Person; or
(w) any agreement by VGX or any of its Subsidiaries to do any of the foregoingthis Section 5.22.
Appears in 1 contract
Samples: Plan of Tax Free Reorganization (Tpi Enterprises Inc)
Absence of Certain Changes or Events. Since Except as set forth on Schedule 4.6 hereof, since December 31, 1998, Dakota and the date of VGX Balance Sheet, VGX and each of its Dakota Subsidiaries has conducted its business have operated their businesses only in the ordinary course and consistent with past practice and, since such date, (i) with respect to VGX practices and its Subsidiaries other than VGXI there has not been or (ii) with respect to VGXI only, to the Knowledge of VGX, there has not been nor has VGX been asked to act in any management or stockholder capacity to allow for or approvebeen:
(a) any Material Adverse Effect on VGX on any of its SubsidiariesChange in Dakota;
(b) any resignation dividend or termination other distribution on, or any recapitalization, combination or subdivision with respect to, or any purchase or redemption by VGX Dakota or the Dakota Subsidiaries of, any shares of the capital stock of Dakota or any of its the Dakota Subsidiaries of any executive officer or director;
(c) any written notice of any actual or threatened termination by any material customer, supplier, partner, licensor, licensee or other third party having business relations with VGX or any of its Subsidiaries;
(d) any damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the material assets, or any material portion of the assets, of VGX or any of its Subsidiaries or materially and adversely affecting the business of VGX or any of its Subsidiaries;
(e) any commencement of Legal Proceedings against VGX or any of its Subsidiaries, and no Person has notified VGX or any of its Subsidiaries in writing that it, and there is no reason to reasonably believe that any Person, intends to commence a Legal Proceeding;
(f) any material increase in the compensation payable to any officer or director of VGX (other than increases in each case in connection with general performance reviews and annual salary increases in each case in the ordinary course of business and consistent with past practices, or pursuant to existing contractual commitments), including the making of any loan to such person (other than advancement of routine travel, entertainment and other business expenses);
(g) any transaction of the type described in Item 404(a) of Regulation S-K of the rules and regulations of the Securities and Exchange Commission (the "SEC");
(h) any sale, lease, license, assignment or exclusive license of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), or any encumbrance (excluding Permitted Liens) of any properties or assets, tangible or intangible (including, without limitation, Intellectual Property), other than sales or licenses in the ordinary course of VGX's business or the business of any of its Subsidiaries and other than with respect to tangible assets transactions involving less than $500,000 in any one case or $1,000,000 in the aggregate;
(i) any material change by VGX or any of its Subsidiaries in its accounting methods, principles or practices, except as required by concurrent changes in US GAAP;
(j) any material revaluation by VGX or any of its Subsidiaries of any of its assets, including writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness consistent with past practices;
(kc) any establishmentsale, termination transfer, lease, or amendment Encumbrance of any VGX Employee Plan;
(l) any material increase of severance or termination pay to any employee of VGX or any Subsidiary of VGX;
(m) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock, equity securities or property) in respect of, any of VGX Capital Stock or any capital stock of its Subsidiaries;
(n) any purchase, redemption or other acquisition by VGX Dakota's or any of its Subsidiaries the Dakota Subsidiaries' assets or cancellation of any of VGX Capital Stock claims of, or any other securities of VGX indebtedness or its Subsidiaries or any optionsobligations owing to, warrants, calls or rights to acquire any such shares or other securities except for repurchases from VGX Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements;
(o) any issuance or reservation for issuance by VGX Dakota or any of its Subsidiaries of, or commitment of it to issue or reserve for issuance, or the pledge or other encumbrance (excluding Permitted Liens) by it of, any shares of capital stock or other securities or obligations or securities convertible into or exchangeable for shares of capital stock or other securities, or issuance, sale or authorization by it of any subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into capital stock, other than (i) the issuance, delivery and/or sale of shares of VGX Common Stock pursuant to the exercise of VGX Options, (ii) the granting of options to purchase VGX Common Stock in the ordinary course of business under the VGX Option Plan, and (iii) issuances upon exercise of VGX Warrants or other rights disclosed pursuant to Section 2.2;
(p) any split, combination or reclassification of any of VGX Capital Stock or the capital stock of any of its Dakota Subsidiaries' or issuance or authorization of issuance of any other securities in respect of, in lieu of or in substitution for any VGX Capital Stock or the capital stock of any of its Subsidiaries;
(q) any amendment of the Certificate of Incorporation or By-Laws of VGX;
(r) any capital expenditure or execution of any lease by VGX involving remaining payments or obligations in excess of $500,000 individually or $1,000,000 in the aggregate;
(s) any cancellation by VGX or any of its Subsidiaries of any indebtedness or waiver of any rights material to VGX, except in the ordinary course of business;
(td) any indebtedness incurred material increase in the salaries or guaranteed other compensation or employee benefits with respect to any employees of Dakota or the Dakota Subsidiaries except regularly scheduled increases in accordance with prior practices or existing agreements.
(e) any purchase of or agreement to purchase any additional assets by VGX Dakota or any of its Subsidiaries the Dakota Subsidiaries, except in the ordinary course of business or for borrowed money a purchase price of less than $500,000;
(f) any loss, damage, destruction or any commitment other casualty to borrow money entered into by VGX or any of its the properties of Dakota or the Dakota Subsidiaries (whether or not covered by insurance) (i) in excess of $500,000100,000 per occurrence or $500,000 in the aggregate or (ii) which has resulted in a Material Adverse Effect on Dakota or the Dakota Subsidiaries;
(g) any entry into any additional, or modification of any existing, agreements to borrow money (whether secured or unsecured), or any loans made or agreed to be made by VGX or any refinancing of its Subsidiariessuch agreements, other than reasonable travel and entertainment expense advances and trade accounts receivable except in the ordinary course of business;
(uh) any commencement entry into any guarantee by Dakota or the Dakota Subsidiaries on behalf of Legal Proceedings any third party;
(i) any capital expenditures by VGX Dakota or the Dakota Subsidiaries in excess of the amount set forth in Dakota's 1999 Capital Expenditure Budget, a true and correct copy of which is appended to Schedule 4.6 hereto;
(j) changes in accounting principles, elections, or procedures other than as required by changes in GAAP;
(k) any entry into any employment, consulting, management or severance agreement by Dakota or any of its the Dakota Subsidiaries except in the ordinary course of business;
(l) amendment of the Articles of Incorporation or Bylaws of Dakota or comparable charter or organizational document of the Dakota Subsidiaries;
(vm) except for the merger of Dakota into DakBev contemplated in this Agreement, authorization for issuance, sale, delivery or agreement or commitment to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any acquisition or disposition shares of any equity interest in class of Dakota's or any other Personof the Dakota Subsidiaries' capital stock or any securities convertible into or exchangeable for shares of any class of such capital stock;
(n) any amendment or termination of any material agreement to which Dakota or any of the Dakota Subsidiaries is a party; or
(wo) any agreement action taken by VGX Dakota or any of its Subsidiaries the Dakota Subsidiaries, or their directors, officers or stockholders to do authorize any of the foregoingactions contemplated above.
Appears in 1 contract
