Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Cendant Corp), Merger Agreement (Cendant Corp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or as set forth on Section 2.09 of the transactions contemplated herebyCompany Schedule, since January 1December 31, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been any: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's or any of its subsidiaries' capital stock, or any purchase, redemption or other acquisition by Company of any of Company's capital stockstock or any other securities of Company or its subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's its subsidiaries' capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any material increase in compensation, bonus compensation or other fringe benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by Company or any of its subsidiaries of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by Company or any of its subsidiaries of any increase in severance or termination pay or any entry by Company or any of its subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which would be contingent or the terms of which would be materially altered upon the occurrence of a transaction involving Company of the nature contemplated hereby, (v) entry by Company or any of its subsidiaries into any licensing or other agreement with regard to the material acquisition or disposition of any Intellectual Property (as defined in Section 2.15) other than licenses disclosed in Section 2.15(i) of the Company Schedule, (vi) amendment or consent with respect to any licensing agreement filed or required to be filed by Company with the SEC, (vii) material change by Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, (viii) material revaluation by Company of any transaction of its assets, including, without limitation, writing down the value of capitalized inventory or commitmentwriting off notes or accounts receivable, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim sale of wrongful discharge or assets of Company other unlawful labor practice or action, (x) any improper subjection than in the ordinary course of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingbusiness.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sybase Inc), Agreement and Plan of Reorganization (New Era of Networks Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule ------------------------------------ -------- 4.9, since January 1the date of the Latest Balance Sheet, 2000, each of the Company and the --- Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse consistent with past custom and practices. Except as set forth on Schedule 4.9, and ------------ since the date of the Latest Balance Sheet, there has not been any:
(ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companyoperations, except for an effect due to changes affecting the economy condition (financial or financial markets generally other than such changes which affect otherwise), operating results, assets, liabilities, employee or client relations or prospects of the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesor any Company Subsidiary;
(b) damage, (ii) any declaration, setting aside destruction or payment loss of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting property owned by the Company or any Company Subsidiary, or used in the operation of its subsidiaries to any current the Business, whether or former directornot covered by insurance, executive officer having a replacement cost or fair market value in excess of five percent (5%) of the amount of net property, plant and equipment shown on the Latest Balance Sheet, in the aggregate;
(c) voluntary or involuntary sale, transfer, surrender, cancellation, abandonment, waiver, release or other Key Employee of the Company or its subsidiaries disposition of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting kind by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Company Subsidiary of any increase in severance right, power, claim or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesdebt, except as would not be required to be disclosed in the Company SEC Documentscollection of accounts and billing of work-in-process, (vii) any material insurance transaction other than each in the ordinary course of business consistent with past practicecustom and practices;
(d) strike, (viii) any transaction picketing, boycott, work stoppage, union organizational activity, allegation, charge or commitment, or series complaint of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge employment discrimination or other unlawful labor practice dispute or actionsimilar occurrence that is reasonably expected to adversely affect the Company, a Company Subsidiary or the Business;
(xe) any improper subjection of VOI inventory loan or advance by the Company or any Company Subsidiary to any Person, other than as a result of services performed for, or expenses properly and reasonably advanced for the FairShare Program or benefit of, customers in the ordinary course of business consistent with past custom and practices;
(xif) any agreement or commitment notice (contingent formal or otherwise) of any liability, potential liability or claimed liability relating to do environmental matters;
(g) declaration, setting aside, or payment of any dividend or other distribution in respect of the foregoingCompany's capital stock or other equity interests or any direct or indirect redemption, purchase, or other acquisition of the Company's or any Company Subsidiary's capital stock or other equity interests, or the payment of principal or interest on any note, bond, debt instrument or debt to any Affiliate (as defined in Section ------- 15.
Appears in 2 contracts
Samples: Merger Agreement (Centerpoint Advisors Inc), Merger Agreement (Centerpoint Advisors Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule ------------------------------------ -------- 4.8, since January 1the date of the Latest Balance Sheet, 2000, each of the Company and the --- Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse consistent with past custom and practices. Except as set forth on Schedule 4.8, and ------------ since the date of the Latest Balance Sheet, there has not been any:
(ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companyoperations, except for an effect due to changes affecting the economy condition (financial or financial markets generally other than such changes which affect otherwise), operating results, assets, liabilities, employee, customer or supplier relations or business prospects of the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesor any Company Subsidiary;
(b) damage, (ii) any declaration, setting aside destruction or payment loss of any dividend property owned or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting leased by the Company or any Company Subsidiary, whether or not covered by insurance, having a replacement cost or fair market value in excess of its subsidiaries to any current $100,000.00 in the aggregate;
(c) voluntary or former directorinvoluntary sale, executive officer transfer, surrender, cancellation, abandonment, waiver, release or other Key Employee disposition of any kind by the Company or its subsidiaries any Company Subsidiary of any increase right, power, claim, debt, asset or property (having a replacement cost or fair market value in compensation, bonus or other benefitsexcess of $100,000.00 in the aggregate), except for increases in the ordinary course of businessbusiness consistent with past custom and practices;
(d) strike, picketing, boycott, work stoppage, union organizational activity, allegation, charge, written complaint of employment discrimination or other labor dispute or similar occurrence that might reasonably be expected to adversely affect the Company, a Company Subsidiary or the Business;
(Be) any granting loan or advance by the Company or any of its subsidiaries Company Subsidiary to any such current or former directorperson, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practicecustom and practices and travel and other business-related advances to employees of the Company and Company Subsidiaries in the ordinary course of business;
(f) notice (formal or otherwise) of any liability, potential liability or claimed liability relating to environmental matters;
(viiig) declaration, setting aside, or payment of any transaction dividend or other distribution in respect of the Company's or a Company Subsidiary's capital stock or any direct or indirect redemption, purchase, or other acquisition of the Company's or any Company Subsidiary's capital stock, or the payment of principal or interest on any note, bond, debt instrument or debt to any Affiliate of the Company or any Company Subsidiary;
(h) incurrence by the Company or any Company Subsidiary of debts, liabilities or obligations except current liabilities incurred in connection with or for services rendered or goods supplied in the ordinary course of business consistent with past custom and practices, liabilities on account of taxes and governmental charges (but not penalties, interest or fines in respect thereof), and obligations or liabilities incurred by virtue of the execution of this Agreement;
(i) issuance by the Company or any Company Subsidiary of any notes, bonds, or other debt securities or any equity securities or securities convertible into or exchangeable for any equity securities;
(j) entry by the Company or any Company Subsidiary into, or material amendment or termination of, any material commitment, contract, agreement, or series transaction, other than in the ordinary course of related transactions or commitmentsbusiness and other than expiration of contracts in accordance with their terms;
(k) loss or, to acquire real estate the knowledge of the Stockholders or the Company, threatened loss of, or any material reduction or, to the knowledge of the Stockholders or the Company, threatened material reduction in revenues from, any client of the Company or any Company Subsidiary who accounted for VOI development revenues during the last twelve months in excess of $1,000,000 250,000.00, or change in the relationship of the Company or any Company Subsidiary with any client or Governmental Authority which might reasonably be expected to materially and adversely affect the Company, any Company Subsidiary or the Business;
(ixl) change in accounting principles, methods or practices (including, without limitation, any material labor trouble change in depreciation or claim of wrongful discharge amortization policies or other unlawful labor practice or action, (xrates) any improper subjection of VOI inventory utilized by the Company or any Company Subsidiary;
(m) discharge or satisfaction by the Company or any Company Subsidiary of any material liability or encumbrance or payment by the Company or any Company Subsidiary of any material obligation or liability, other than current liabilities paid in its ordinary course of business consistent with past custom and practices;
(n) sale, lease or other disposition by the Company or any Company Subsidiary of any tangible assets other than in the ordinary course of business, or sale, assignment or transfer by the Company or any Company Subsidiary of any trademarks, service marks, trade names, corporate names, copyright registrations, trade secrets or other intangible assets or disclosure of any proprietary confidential information of the Company or any Company Subsidiary to any person other than Compass, and the FairShare Program other Founding Companies and their respective officers, employees and agents;
(o) capital expenditures or commitments therefor by the Company or any Company Subsidiary in excess of $100,000.00 individually or $200,000.00 in the aggregate;
(xip) mortgage, pledge or other encumbrance of any agreement asset of the Company or commitment (contingent any Company Subsidiary or otherwise) to do creation of any easements, Liens or other interests against or on any of the foregoingReal Property (hereinafter defined);
(q) adoption, amendment or termination of any Employee Plan (hereinafter defined) or increase in the benefits provided under any Employee Plan, or promise or commitment to undertake any of the foregoing in the future; or
(r) an occurrence or event not included in clauses (a) through (q) that has resulted or is expected to result in a material adverse effect on the business, operations, property, assets, condition (financial or otherwise), operating results, liabilities, employee, customer or supplier relations or business prospects of the Company or any Company Subsidiary (a "Company Material Adverse Effect").
Appears in 2 contracts
Samples: Stock Purchase Agreement (Compass International Services Corp), Stock Purchase Agreement (Compass International Services Corp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with Since December 31, 2013 and through the date of this Agreement or the transactions contemplated herebyAgreement, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been, with respect to the Company or any of its Subsidiaries:
(a) any material damage, destruction or loss with respect to properties or assets;
(b) any satisfaction or discharge of any Encumbrance, except in the Ordinary Course of Business;
(c) other than issuances pursuant to the Company Stock Plan, any issuance of any share of capital stock, warrant, bond or other security or equity interest or any security or instrument directly or indirectly convertible into or exchangeable or exercisable for any of the foregoing;
(d) any material change to a Material Contract by which the Company or any of its assets is bound or subject;
(e) any (i) grant of any severance or termination pay to (or amendment to any existing arrangement with) any director, officer or employee of the occurrence Company or any of an event its Subsidiaries (other than such grants that could reasonably be expected do not exceed $100,000 in the aggregate); (ii) increase in benefits payable under any existing severance or termination pay policies or employment agreements covering any director, officer or employee of the Company or any of its Subsidiaries (other than in the Ordinary Course of Business to result employees of the Company or any of its Subsidiaries who are not directors); (iii) entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer, or employee of the Company or any of its Subsidiaries, other than any such agreement with a new hire that is for no more than $100,000 per annum and is entered into in the Ordinary Course of Business; (iv) establishment, adoption or amendment (except as required by applicable Law) of any material adverse effect on collective bargaining agreement or Employee Plan or other bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any director or officer of the CompanyCompany or any of its Subsidiaries; or (v) increase in compensation, bonus or other benefits payable to any director, officer or employee of the Company or any of its Subsidiaries, other than increases in the Ordinary Course of Business to employees of the Company or any of its Subsidiaries who are not directors or officers of the Company or any of its Subsidiaries;
(f) any sale or assignment by the Company or any of its Subsidiaries of any Intellectual Property owned by or licensed to the Company or any of its Subsidiaries;
(g) any Encumbrance created by the Company or any of its Subsidiaries with respect to any of its properties or assets, except for an effect due Permitted Encumbrances;
(h) any loss, abandonment or lapse of any rights protecting any Intellectual Property owned by or licensed to changes affecting the economy Company or financial markets generally any of its Subsidiaries, other than those licenses which have terminated in accordance with their terms;
(i) any incurrence, assumption or guarantee by the Company or any of its Subsidiaries of any indebtedness for borrowed money or Capitalized Lease Obligations, or the making by the Company or any of its Subsidiaries of any loans, advances or capital contributions to, or investments in, any Person other than (x) loans, advance or capital contributions to the Company’s wholly owned Subsidiaries, and (y) travel and other business-related advances made in the Ordinary Course of Business made by the Company or any of its Subsidiaries to or for the benefit of their employees, officers or directors;
(j) any creation or incurrence of a material liability, or the entry into any material transaction, Contract or commitment, other than such changes which affect items created or incurred in the Company Ordinary Course of Business;
(k) any change in a manner which is not proportionate the Company’s policies with respect to the effect payment of such changes on similarly situated companiesaccounts payable or other current liabilities or the collection of accounts receivable, including any acceleration or deferral of the payment or collection thereof, as applicable;
(iil) any declaration, setting aside or payment of any dividend or any other actual, constructive or deemed distribution (whether in cash, stock or property) with in respect to of any shares of capital stock of the Company or any of the Company's capital stockits Subsidiaries, (iii) or any splitdirect or indirect redemption, combination purchase, or reclassification other acquisition of any of the Company's capital such stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries Subsidiaries, or any other payments to any current or former director, executive officer or other Key Employee stockholders of the Company in their capacity as such;
(m) any other event or its subsidiaries condition of any increase in compensationcharacter that would, bonus individually or other benefits, except for increases in the ordinary course of businessaggregate, reasonably be expected to have a Material Adverse Effect;
(Bn) any granting waiver by the Company or any of its subsidiaries to any such current Subsidiaries of a material right or former director, executive officer or Key Employee of any increase indebtedness owed to it, whether or not in severance or termination paythe Ordinary Course of Business;
(o) any adoption of, or any proposal submitted to the Stockholders or the Board of Directors of the Company to amend, the certificate of incorporation or bylaws or similar constituent documents of the Company or any of its Subsidiaries;
(Cp) any entry adoption by the Company or any of its subsidiaries intoSubsidiaries of a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, other than this Agreement, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election acquisition by the Company or any of its subsidiaries Subsidiaries of a material amount of stock or any settlement or compromise assets of any income tax liability other Person;
(q) any sale, lease or other transfer by the Company or any of its subsidiariesSubsidiaries of any material amount of assets, securities or property;
(r) any license agreement other than those entered into in the Ordinary Course of Business providing for a license of any Intellectual Property to or from the Company or any of its Subsidiaries on a non-exclusive basis;
(s) any split, combination, subdivision or reclassification of any shares of capital stock or other equity securities of the Company or any of its Subsidiaries;
(t) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries;
(u) any change in any method of accounting or accounting principles or practice by the Company or any of its Subsidiaries (including any change in fiscal year), except as would not be for any such change required to be disclosed in the Company SEC Documents, by GAAP;
(viiv) any material insurance transaction other settlement or proposal for settlement of any claim, dispute or Action involving more than in the ordinary course of business consistent with past practice, $100,000;
(viiiw) any transaction change in any Tax election, annual tax accounting period, any method of tax accounting, any filing of amended Tax Returns or commitmentclaims for Tax refunds, any entry into a closing agreement relating to Taxes or series any settlement of related transactions any Tax claim, audit or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, assessment;
(x) any improper subjection of VOI inventory capital expenditure by the Company or any of its Subsidiaries other than capital expenditures made in accordance with the Company’s current budget (a copy of which has been provided to Acquiror prior to the FairShare Program or date of this Agreement); or
(xiy) any agreement agreement, action, arrangement or commitment (contingent by the Company or otherwise) any of its Subsidiaries to do any of the foregoingthings described in this Section 3.8 or that would not be permitted under Section 5.1.
Appears in 2 contracts
Samples: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement (Ezchip Semiconductor LTD)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with the Company SEC Reports filed prior to the date of this Agreement or the transactions Agreement, and except as contemplated herebyby this Agreement, since January 1December 31, 20002006, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company 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 the Company of the nature contemplated hereby, (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of the Company, (vii) any issuance of capital stock of the Company, or (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory revaluation by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do of any of their respective assets, including, without limitation, writing down the foregoingvalue of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company other than in the ordinary course of business.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Henderson J Sherman Iii), Securities Exchange Agreement (Suncrest Global Energy Corp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with Since June 30, 1997 to the date of this Agreement and except as set forth in Section 3.08 of the Disclosure Schedule or the transactions as expressly contemplated herebyby this Agreement, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (ia) any damage, destruction or loss to any of the occurrence material assets or properties of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, or any Company Subsidiary; (iib) any declaration, setting aside or payment of any dividend or other distribution (whether or capital return in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any shares of the Company's capital stock Common Stock or any issuance redemption, purchase or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting acquisition by the Company or any Company Subsidiaries of its subsidiaries to any current or former directorshares of Common Stock; (c) any sale, executive officer assignment, transfer, lease or other Key Employee disposition or agreement to sell, assign, transfer, lease or otherwise dispose of any of the assets of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, Company Subsidiary having a value individually exceeding $2,000,000; (Bd) any granting acquisition (by merger, consolidation, or acquisition of stock or assets) by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Company Subsidiary of any increase corporation, partnership or other business organization or division thereof for consideration individually in severance or termination payexcess of $1,000,000; (e) except as reflected in the Company Financial Statements, or (Ci) any entry incurrence by the Company or any Company Subsidiary of its subsidiaries intoany indebtedness for borrowed money, (ii) any issuance by the Company or any Company Subsidiary of any debt securities or (iii) any assumption, granting, guarantee or endorsement, or other accommodation arrangement making the Company or any amendment ofCompany Subsidiary responsible for, the indebtedness for borrowed money of any Person (other than another Company Subsidiary), in the case of (i), (ii) and (iii) above, having an aggregate value exceeding $2,000,000 for all such occurrences; (f) except as reflected in the Company Financial Statements, any change in any method of accounting or accounting practice used by the Company or any Company Subsidiary, other than such changes required by GAAP; (g) any Material Adverse Effect; (h)
(i) any employment, deferred compensation, consulting, severance, termination severance or indemnification similar agreement with any such current entered into or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election amended by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesSubsidiary, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any employment agreement or commitment (contingent or otherwise) to do any of the foregoing.providing 13
Appears in 2 contracts
Samples: Merger Agreement (Magellan Health Services Inc), Merger Agreement (Magellan Health Services Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule 3.16, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and Balance Sheet Date there has not been any:
(ia) RedChip Material Adverse Change;
(b) failure to operate the RedChip Business in the ordinary course so as to use all commercially reasonable efforts to preserve the RedChip Business intact and to preserve the continued services of RedChip's employees and the goodwill of suppliers, customers and others having business relations with RedChip or its Representatives;
(c) resignation or termination of any officer, director or manager, or any increase in the rate of compensation payable or to become payable to any officer, director or manager or Representative of RedChip (other than general, regularly-scheduled reviews), 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 Employee Plan;
(d) any payment, loan or advance of any amount to or in respect of, or the sale, transfer or lease of any properties or the Assets to, or entering into of any Contract with, any Related Party except regular compensation to RedChip Employees;
(e) sale, assignment, license, transfer or Encumbrance of any of the Assets, tangible or intangible, singly or in the aggregate, other than sales of products and services in the ordinary course of business and consistent with past practice;
(f) new Contracts, or extensions, modifications, terminations or renewals thereof, except for Contracts entered into, modified or terminated in the ordinary course of business and consistent with past practice;
(g) actual or threatened termination of any material customer account or group of accounts or actual or threatened material reduction in purchases or royalties payable by any such customer or occurrence of an any event that could reasonably be expected is likely to result in any material adverse effect on such termination or reduction;
(h) disposition or lapsing of any Proprietary Rights of RedChip, in whole or in part, or any disclosure of any Trade Secret, process or know-how to any Person not an Employee;
(i) change in accounting methods or practices by RedChip;
(j) revaluation by RedChip of any of the CompanyAssets, except including writing off or establishing reserves with respect to inventory, notes or accounts receivable (other than for an effect due to changes which adequate reserves have been previously established;
(k) damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the economy Assets, the RedChip Business or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect prospects of such changes on similarly situated companies, RedChip;
(iil) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any capital stock of the Company's RedChip or any redemption, purchase or other acquisition of any equity securities of RedChip;
(m) issuance or reservation for issuance by RedChip of, or commitment of it to issue or reserve for issuance, any shares of capital stock or any issuance other equity securities or the authorization of any issuance of any other obligations or securities in respect of, in lieu of convertible into or in substitution exchangeable for shares of the Company's capital stockstock or other equity securities, except for issuances of Company Common Stock upon the exercise of Company Stock excluding those RedChip Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than RedChip Warrants issued in the ordinary course of business and in accordance with Section 3.2, and excluding any shares of RedChip Stock issued upon the exercise or conversion of any RedChip Option and/or RedChip Warrant;
(n) increase, decrease or reclassification of the capital stock of RedChip;
(o) amendment of the Certificate of Incorporation or Bylaws of RedChip;
(p) capital expenditure or execution of any lease or any incurring of liability therefor by RedChip, involving payments or obligations in excess of $50,000 in the aggregate;
(q) failure to pay any material obligation of RedChip when due;
(r) cancellation of any indebtedness or waiver of any rights of substantial value to RedChip, except in the ordinary course of business and consistent with past practice, ;
(viiis) indebtedness incurred by RedChip for borrowed money or any transaction or commitmentcommitment to borrow money entered into by RedChip, or series of related transactions any loans made or commitments, agreed to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory be made by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.RedChip;
Appears in 2 contracts
Samples: Merger Agreement (Freerealtime Com Inc), Merger Agreement (Freerealtime Com Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or as set forth on Section 3.8 of the transactions contemplated herebyCompany Schedule of Exceptions, since January 1December 31, 20002010, until the date of this Agreement, and except as contemplated by this Agreement, the Company and each Subsidiary has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, course consistent with past practice and there has not been (ia) the any change, event or occurrence of an event that could which has had or would reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the have a Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect; (iib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock stock, property or property) with otherwise in respect to any of the Company's ’s capital stock, ; (iiic) any splitredemption, combination repurchase or reclassification other acquisition of any shares of capital stock of the Company's capital stock Company (other than in connection with the forfeiture or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock equity based awards, Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present existing agreements or terms, ); (iv) prior to the date hereof (Ad) any granting by the Company or to any of its subsidiaries to any current directors, officers or former director, executive officer or other Key Employee of the Company or its subsidiaries employees of any material increase in compensation, bonus compensation or other benefits, except for increases in the ordinary course of business, business consistent with past practice or that are required under any Company Plan; (Be) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee employee of the right to receive any increase in severance or termination pay, except as provided for under any plan or agreement in effect prior to December 31, 2010; (Cf) any entry by the Company or any of its subsidiaries intoSubsidiaries into any employment, consulting, indemnification, termination, change of control or severance agreement or arrangement with any present or former director, officer or employee of the Company, or any amendment ofto or adoption of any Company Plan or collective bargaining agreement; (g) any material change by the Company or any of its Subsidiaries in its accounting principles, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed be required to conform to changes in Company SEC Documents statutory or required by a change in GAAP, regulatory accounting rules or GAAP or regulatory requirements with respect thereto; (h) any material change in a Tax Group tax accounting methods (period or underlying assumptions)method or settlement of a material Tax claim or assessment, principles or practices by the Company affecting its assetsin each case, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by relating to the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any a Subsidiary of the foregoingCompany, unless required by GAAP or applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Ophthalmic Imaging Systems), Merger Agreement (Merge Healthcare Inc)
Absence of Certain Changes or Events. Except Since the date of the Balance Sheet and except for liabilities incurred in connection with the sale of the PEC business and as set forth on Schedule 2.12 attached to this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and has conducted its subsidiaries have conducted their respective businesses only business in the ordinary coursecourse consistent with past practice and none of the following has occurred:
(a) event, and there has not been (i) fact or circumstances that, individually or in the occurrence of an event that aggregate, could reasonably be expected to result in any a material adverse effect on the operations, conditions or prospects of the Company;
(b) acquisition of or agreement to acquire by merging with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business entity, in a transaction or series of related transactions;
(c) issuance by the Company of, or commitment by it to issue, any common stock or other equity securities or obligations or any securities convertible into or exchangeable or exercisable for equity securities;
(d) other than under the Company's current line of credit with commercial banks, indebtedness incurred, assumed or guaranteed by the Company or any commitment to incur indebtedness entered into by the Company, or any loans made or agreed to be made by the Company;
(e) increase in the compensation of officers or employees (including any such increase pursuant to the grant of or increase to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation payable or to become payable to any officer or employee or any severance or termination pay, except for increases to non officer employees in the ordinary course of business, consistent with past practice or as required by any existing agreement;
(f) incurrence or imposition of a lien, security interest or encumbrance on any of the assets or other properties of the Company;
(g) damage, destruction or loss (whether or not covered by insurance) in an effect due aggregate amount exceeding U.S. $5,000;
(h) delay or failure to changes affecting pay or perform any obligation (including accounts payable) of the economy Company when due;
(i) settlement or financial markets generally other resolution of any litigation, or termination, amendment, modification or waiver of, or any breach, violation or default by any party under, any contract or agreement of the Company, or entrance into a material contract, commitment or agreement;
(j) forgiveness, waiver or agreement to extend repayment of any indebtedness or other material obligation owed by or to the Company;
(k) disposition or lapse of any rights to use any of the intellectual property or intangible assets of the Company;
(l) contract, agreement or transaction with Seller, any affiliate of the Company, any officer, director, stockholder or employee of the Company or any family member of any such person other than such changes which affect in the Company ordinary course of business or as mentioned or disclosed in a manner which is not proportionate with the effect of such changes on similarly situated companies, this Agreement;
(iim) any declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, stock property or propertyequity interests) to Seller or otherwise with respect to any the capital stock of the Company's capital stock, (iii) or any splitredemption, combination purchase or reclassification acquisition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior ;
(n) payment on any indebtedness to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company Seller or any person or entity affiliated with Seller;
(o) material change in the tax liability of its subsidiaries the Company;
(p) capital expenditures or commitments for additions to any current or former director, executive officer or other Key Employee property of the Company or its subsidiaries of any increase constituting capital assets in compensation, bonus or other benefits, except for increases an aggregate amount exceeding U.S. $5,000 and not previously contained in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company capital budget furnished to the FairShare Program Purchaser; or
(q) negotiation, discussion or (xi) any contract or agreement to take or commitment (contingent or otherwise) agree to do take any of the foregoingactions described in subsections (a) through (p) above.
Appears in 2 contracts
Samples: Stock Purchase and Barter Agreement (Maxwell Technologies Inc), Stock Purchase and Barter Agreement (Montena Sa)
Absence of Certain Changes or Events. Except for liabilities incurred Since December 31, 1996, except as contemplated by this Agreement, disclosed in connection with the SEC Reports filed and publicly available prior to the date of this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and its subsidiaries have conducted their respective businesses only in the ordinary coursecourse and in a manner consistent with past practice and, and since such date, there has not been been: (i) any changes in the occurrence financial condition, results of an event that could reasonably be expected to result in any material adverse effect on the Companyoperations, except for an effect due to changes affecting the economy assets, business or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect operations of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries having or reasonably likely to have a Material Adverse Effect; (ii) any condition, event or occurrence which, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect; (iii) any damage, destruction or loss (whether or not covered by insurance) with respect to any current or former director, executive officer or other Key Employee assets of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries which is reasonably likely, individually or in the aggregate, to have a Material Adverse Effect; (iv) any such current change by the Company in its accounting methods, principles or former director, executive officer or Key Employee practices; (v) any revaluation by the Company of any increase of its material assets, including but not limited to writing down the value of inventory or writing off notes or accounts receivable other than in severance or termination pay, or the ordinary course of business; (Cvi) any entry by the Company or any of its subsidiaries intointo any commitment or transactions material to the Company and its subsidiaries taken as a whole (other than commitments or transactions entered into in the ordinary course of business); (vii) any declaration, setting aside or payment of any amendment ofdividends or distributions in respect of the Shares other than the regular quarterly dividend in the amount of $.20 per share; or (viii) any increase in or establishment of any bonus, any employmentinsurance, severance, deferred compensation, consultingpension, severanceretirement, termination profit sharing, stock option (including without limitation the granting of stock options, stock appreciation rights, performance awards, or indemnification restricted stock awards), stock purchase or other employee benefit plan or agreement with or arrangement, or any such current other increase in the compensation payable or to become payable to any present or former directordirectors, executive officer officers or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate key employees of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed for increases in the Company SEC Documents, (vii) any material insurance transaction other than base compensation in the ordinary course of business consistent with past practice, (viii) or any transaction employment, consulting or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any severance agreement or commitment (contingent arrangement entered into with any such present or otherwise) to do any of the foregoingformer directors, officers or key employees.
Appears in 2 contracts
Samples: Merger Agreement (Itt Industries Inc), Agreement and Plan of Merger (Goulds Pumps Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, since From January 1, 20002010 until the date of this Agreement, except as contemplated by this Agreement and except for any redemption of Convertible Notes pursuant to the Indenture, the Company and has conducted its subsidiaries have conducted their respective businesses only in the ordinary coursecourse consistent with past practices, and there has not been any (ia) the occurrence of an event that could reasonably be expected to result has had, individually or in any material adverse effect on the Companyaggregate with all such other events, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect a Company Material Adverse Effect, (b) change by the Company in its accounting methods, principles or practices materially affecting the consolidated assets, liabilities, results of operations or Taxes of the Company and its consolidated Company Subsidiaries, except insofar as may have been required by a manner which is not proportionate with change in GAAP or the effect rules and regulations of such changes on similarly situated companiesthe SEC, (iic) any change in an existing election with respect to Taxes, (d) declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemption, purchase or other distribution (whether in cash, stock or property) with respect to acquisition for value of any of the Company's its capital stock, (iiie) any splitincurrence, combination assumption or reclassification guarantee by the Company of any indebtedness for borrowed money, other than in the ordinary course of business and in amounts and on terms consistent with past practices not exceeding $1,000,000 in the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsaggregate, (ivf) prior to the date hereof (A) any granting creation or assumption by the Company or any Company Subsidiary of its subsidiaries any material lien, encumbrance or charge on, or sale, assignment or other transfer of, any material amount of their respective tangible or intangible assets, (g) purchase or other acquisition of, or commitment for, any amount of tangible or intangible assets outside of the ordinary course of business and for more than $750,000 in the aggregate, (h) (1) grant of any severance or termination pay to any current or former director, executive officer or other Key Employee employee of the Company or its subsidiaries of any increase Company Subsidiary except in compensation, bonus accordance with existing contractual arrangements or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination paypay policies, or (C2) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination severance or indemnification other similar plan or agreement with any such current employee, director or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate consultant of practice or policy, (vi) any tax election by the Company or its subsidiaries any Company Subsidiary, (3) change in benefits payable under existing severance or any settlement or compromise termination pay policies of any income tax liability by the Company or its subsidiaries, except as would not be required any Company Subsidiary or employment agreements to be disclosed in which any employee of the Company SEC Documentsor any Company Subsidiary is a party, or (vii4) change in compensation, bonus or other benefits payable to any material insurance transaction employee, director or consultant of the Company or any Company Subsidiary, other than in the ordinary course of business consistent with past practicepractices, (viiii) commencement or notice or threat of commencement of any transaction litigation, proceeding, investigation or commitmentinquiry against, or series investigation by any governmental authority of, the Company or any Company Subsidiary that would reasonably be expected to have a Company Material Adverse Effect, or any settlement of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory such matter by the Company or any Company Subsidiary outside of the ordinary course, or (j) dispute or disagreement between the Company or any Company Subsidiary, on the one hand, and any material vendor of products or services to the FairShare Program Company or (xi) any agreement or commitment (contingent or otherwise) Company Subsidiary, on the other hand, that would reasonably be expected to do any of the foregoinghave a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Expressjet Holdings Inc), Merger Agreement (Skywest Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or as set forth on Section 3.9 of the transactions contemplated herebyDisclosure Schedule, since January 1the Balance Sheet Date, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee member of the Company or Group has conducted its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than business in the ordinary course of business (consistent with past practice) and there has not been any:
(a) change, event, effect or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect;
(viiib) material change in the Company’s methods of accounting or accounting practices (including with respect to revenue recognition);
(c) amendment or modification to the Organizational Documents;
(d) payment of any transaction or commitmentbonuses, or series material increases in salaries or other compensation or benefits, by the Company to any of related transactions its managers, officers, employees or commitmentsindependent contractors;
(e) sale, acquisition, assignment, transfer, conveyance or abandonment of any Company Intellectual Property, asset or properties of any member of the Company Group (other than sales of inventory, product or obsolete assets);
(f) damage to acquire real estate for VOI development or destruction or loss of any material asset or property of any member of the Company Group, whether or not covered by insurance;
(g) incurrence of Indebtedness of any member of the Company Group;
(h) dividend, distribution, sale, redemption, repurchase, recapitalization, reclassification, issuance, split, combination, subdivision or other similar transaction involving the equity securities of the Company or securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, equity securities of any member of the Company Group;
(i) amendment or termination of any existing employee benefit plan or arrangement (other than an amendment required by Law), or adoption of any new employee benefit plan or arrangement;
(j) material capital expenditures or commitments therefor;
(k) adoption of a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or merger or consolidation with any other Person or other acquisition of any business or substantial assets of any Person;
(l) failure to pay any Taxes as they became due and payable;
(m) theft, damage, destruction or casualty loss, or Claim therefor, in excess of $1,000,000 100,000 in the aggregate to any asset of the Company Group, whether or not covered by insurance;
(ixn) making of, alteration of, modification of, change of, termination of or revocation of any material labor trouble election relating to Taxes, any annual accounting period or any material method of accounting for Tax purposes; agreement to any audit assessment by any Tax authority; entry into any closing agreement, settlement of any Tax claim or assessment; surrendering of wrongful discharge any right to claim a refund of Taxes; consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or filing of any amended Tax Return;
(o) transaction involving any member of the Company Group that was not in the ordinary course of business (other unlawful labor practice or action, (x) any improper subjection of VOI inventory than the transactions contemplated by the Company to the FairShare Program or Transaction Documents); and
(xip) any agreement authorization or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Avalon GloboCare Corp.), Membership Interest Purchase Agreement (Avalon GloboCare Corp.)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with Since December 31, 2005 until the date of this Agreement or the transactions contemplated herebyAgreement, since January 1, 2000, other than as set forth on Section 5.20 of the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and Disclosure Schedule there has not been any:
(ia) the occurrence of an Company Material Adverse Effect or any event or development that could would reasonably be expected to result have a Company Material Adverse Effect;
(b) material failure to operate the Company's Business in the ordinary course so as to use all commercially reasonable efforts to preserve the Company's Business intact and to preserve the continued services of the Company's employees and the goodwill of suppliers, customers and others having business relations with the Company;
(c) resignation or termination of any key employee or independent contractor, officer or manager, or (except with respect to changes in compensation to the amount reflected on the list of employees made available to Parent) any increase in the rate of compensation payable or to become payable to any officer or manager of the Company (other than in connection with general, regularly-scheduled reviews), 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 Company Benefit Plan;
(d) sale, assignment, license, transfer or Encumbrance of any material adverse effect on Company Assets, tangible or intangible, singly or in the Companyaggregate, other than (i) sales or licenses of products and services in the ordinary course of business and consistent with past practice and (ii) Permitted Encumbrances;
(e) new Contracts, or extensions, modifications, terminations or renewals thereof, except for an effect due Contracts entered into, modified or terminated in the ordinary course of business and consistent with past practice or Contracts that are otherwise immaterial to changes affecting the economy Company;
(f) change in accounting methods or financial markets generally practices by the Company or revaluation by the Company of any of the Company Assets, including writing off or establishing reserves with respect to inventory, notes or accounts receivable (other than such changes for which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, adequate reserves have been previously established);
(iig) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any Units of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former directorredemption, executive officer purchase or other Key Employee acquisition of any Units or other equity securities of the Company other than the Closing Dividend, any distribution made with respect to taxes payable by Unitholders with respect to taxable income for 2005 and purchases by the Company of Class A Units held by Unitholders who are not Accredited Investors;
(h) failure to pay any material obligation of the Company when due, unless the Company is disputing such obligation in good faith and maintaining appropriate reserves therefor;
(i) acceleration or its subsidiaries delay in any material respect of the collection of any increase account receivable in compensation, bonus advance of or other benefits, except for increases beyond its regular due date or the date on which the same would have been collected in the ordinary course of business, business consistent with past practice or (Bii) delay or acceleration in any granting by material respect of the Company or payment of any account payable in advance of its subsidiaries to any due date or the date such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may liability would have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than paid in the ordinary course of business consistent with past practice;.
(j) failure to pay any material obligation of the Company when due, unless the Company is disputing such obligation in good faith and maintaining appropriate reserves therefor;
(viiik) cancellation of any transaction material indebtedness or commitmentwaiver of any rights of substantial value to the Company, except in the ordinary course of business and consistent with past practice;
(l) indebtedness incurred by the Company for borrowed money or any commitment to borrow money entered into by the Company, or series any loans made or agreed to be made by the Company;
(m) acquisition of related transactions any equity interest in any other Person;
(n) adoption, modification or commitments, to acquire real estate for VOI development in excess termination of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, Company Benefit Plan except (x) any improper subjection of VOI inventory as required by Law, or (y) changes to the Company Option Plan contemplated by this Agreement; or
(o) agreement by the Company to the FairShare Program directly or (xi) any agreement or commitment (contingent or otherwise) indirectly to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Websidestory Inc), Merger Agreement (Omniture, Inc.)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with Section 4.08 of the Company Disclosure Schedule, between June 30, 2015 and the date of this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and its subsidiaries the Company Subsidiaries have conducted their respective businesses only in all material respects in the ordinary course, course of business consistent with past practice and there has not been been:
(ia) any change, event or effect that would, individually or in the occurrence of an event that could aggregate, reasonably be expected likely to result in a Company Material Adverse Effect;
(b) any material adverse effect on the Companydamage, except for an effect due destruction or other casualty loss with respect to changes affecting the economy any material asset or financial markets generally other than such changes which affect property owned, leased or otherwise used by the Company in a manner which is or any of the Company Subsidiaries, whether or not proportionate with the effect of such changes on similarly situated companies, covered by insurance;
(iic) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of capital stock or other equity interest of the Company's capital stock, (iii) any split, combination Company or reclassification of any of the Company's capital stock Company Subsidiaries, or any issuance repurchase, redemption or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting acquisition by the Company or any of its subsidiaries to the Company Subsidiaries of any current or former director, executive officer outstanding shares of capital stock or other Key Employee equity interest of the Company or its subsidiaries any of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, Company Subsidiaries;
(Bd) any granting material change in any method of accounting or accounting practice by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of the Company Subsidiaries;
(e) (i) any increase in severance the compensation or termination paybenefits payable or to become payable to its directors, officers or employees (C) any entry by the Company or any of its subsidiaries intoexcept, or any amendment ofwith respect to non-officer employees, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than for increases in the ordinary course of business consistent with past practice, ) or (viiiii) any transaction establishment, adoption, entry into or commitmentamendment of any collective bargaining, bonus, severance, change of control, retention or similar plan, arrangement or agreement or any Company Plan, except, in any case, to the extent required by applicable Law or the terms of any existing plan, arrangement or agreement (including any Company Plan);
(f) any incurrence of any Indebtedness or guarantee of such Indebtedness of another Person, or series issuance or sale of related transactions any debt securities or commitments, warrants or other rights to acquire real estate for VOI development in excess any debt security of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to or any of the FairShare Program or Company Subsidiaries; or
(xig) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Shenandoah Telecommunications Co/Va/), Merger Agreement (Ntelos Holdings Corp.)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince August 31, since January 11996, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been any material adverse change in the business, operations, properties, assets, liabilities, condition (financial or other), results of operations or prospects of the Company, nor, except as disclosed in SCHEDULE 4.8 has there been:
(i) any damage, destruction or loss (whether or not covered by insurance) alone or in the occurrence aggregate, materially adversely affecting the properties or business of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, ;
(ii) any declarationchange in the authorized capital stock of the Company or in its securities outstanding or any change in the Stockholder's ownership interests or any grant of any options, setting aside warrants, calls, conversion rights or commitments;
(iii) any declaration or payment of any dividend or other distribution (whether in cash, respect of the capital stock or property) with respect to any of the Company's capital stockdirect or indirect redemption, (iii) any split, combination purchase or reclassification other acquisition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(iv) prior any increase in the compensation payable or to the date hereof (A) any granting become payable by the Company to the Stockholder or any of its subsidiaries officers, directors, employees, consultants or agents, except for ordinary and customary bonuses and salary increases for employees in accordance with past practice;
(v) any work interruptions, labor grievances or claims filed, or any proposed law, regulation or event or condition of any character materially adversely affecting the business or future prospects of the Company;
(vi) any sale or transfer, or any agreement to sell or transfer, any current material assets, properties or former director, executive officer or other Key Employee rights of the Company to any person, including, without limitation, the Stockholder and their affiliates;
(vii) any cancellation, or its subsidiaries of agreement to cancel, any indebtedness or other obligation owing to the Company;
(viii) any increase in compensationthe Company's indebtedness, bonus or other benefits, except for increases than accounts payable incurred in the ordinary course of business, ;
(Bix) any plan, agreement or arrangement granting by any preferential rights to purchase or acquire any interest in any of the assets, property or rights of the Company or requiring consent of any party to the transfer and assignment of any such assets, property or rights;
(x) any purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of the Company's business;
(xi) any waiver of any material rights or claims of the Company;
(xii) any material breach, amendment or termination of any material contract, agreement, license, permit or other right to which the Company is a party or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or property is subject; or
(Cxiii) any entry material transaction by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in outside the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingbusiness.
Appears in 2 contracts
Samples: Merger Agreement (Palex Inc), Agreement and Plan of Reorganization and Merger (Palex Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated herebydate of the latest Financial Statement of the Company, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been:
(i) Any change in the occurrence financial condition, assets, liabilities, or business of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally Company other than such changes which affect do not, individually or in the Company in aggregate, have a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(ii) any Any declaration, setting aside or payment of any dividend or other distribution (whether in cashrespect of the Company's membership interests, stock or property) any redemption of the Company's outstanding membership interests, or any change in the authorized, issued or outstanding membership interests of the Company, or agreement or commitment with respect to any of the Company's capital stock, thereof;
(iii) Any increase in the compensation payable or to become payable by the Company to any splitof its managers, combination members, officers, employees or reclassification agents, whose total compensation for services rendered is currently at an annual rate of more than $25,000, or any bonus, incentive compensation, service award or other like benefit, granted, made or accrued, contingently or otherwise, to or to the credit of any of the Company's capital stock directors, officers, employees or agents thereof, or any issuance employee welfare, pension, retirement or the authorization of any issuance of any other securities in respect of, in lieu of similar payment or in substitution for shares of arrangement made or agreed to by the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, as set forth on Schedule 3.01(j) attached hereto;
(iv) prior Any labor trouble, or any controversies or unsettled grievances pending or threatened, between the Company and any of its employees or a collective bargaining organization representing or seeking to the date hereof represent such employees;
(Av) any granting Any conducting of business by the Company other than in the ordinary course;
(vi) Any material adverse change in relationship with any substantial customer;
(vii) The entry into, termination of, receipt of notice of termination of, or amendment of or modification to (x) any license, distributorship, dealer, supplier, sales representative, joint venture, credit or similar agreement, or (y) any contract or commitment (other than for the sale of its subsidiaries to any current or former director, executive officer or other Key Employee of products by the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business) involving a total remaining commitment by or to the Company in excess of $5,000;
(viii) Any borrowing or lending of money by the Company;
(ix) Any individual capital expenditure, or incurring of liability therefor, in excess of $5,000; or
(Bx) Any loan to or guaranty of the indebtedness of the Members, any granting by employee of the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingCompany's employees' family members.
Appears in 2 contracts
Samples: Merger Agreement (Am Communications Inc), Merger Agreement (Am Communications Inc)
Absence of Certain Changes or Events. Except for liabilities incurred From December 31, 2012 through the date of this Agreement, the Company and each of the Company Subsidiaries has conducted its business in all material respects in the ordinary course consistent with past practice, except in connection with this Agreement or and the transactions contemplated hereby, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there herein. There has not been been: (i) the since December 31, 2012, any event, change, occurrence or effect of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in has Knowledge which has had a manner which is not proportionate with the effect of such changes on similarly situated companiesMaterial Adverse Effect, (ii) between December 31, 2012 and the date of this Agreement, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock shares, property or property) with otherwise in respect to of the Company’s or any of the Company's capital stockCompany Subsidiaries’ share capital, except for any dividend or distribution by a Company Subsidiary to the Company or another Company Subsidiary thereof, (iii) between December 31, 2012 and the date of this Agreement, any splitredemption, combination repurchase or reclassification other acquisition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's share capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company Subsidiaries, other than in connection with (A) the acquisition by the Company of its Shares in connection with the forfeiture of Company Restricted Shares or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting the acquisition by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Shares in connection with the net exercise of any increase Company Options in severance or termination pay, or (C) any entry by accordance with the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employeeterms thereof, (viv) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAPbetween December 31, 2012 and the date of this Agreement, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting in its assetsaccounting principles, liabilities except as may be appropriate to conform to changes in statutory or businessregulatory accounting rules or GAAP or regulatory requirements with respect thereto, includingor (v) between December 31, without limitation2012 and the date of this Agreement, any reservingmaking or revocation of any material Tax election, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by material Tax liability, or any change (or request to any taxing authority to change) to any material aspect of the method of accounting of the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingCompany Subsidiaries for Tax purposes.
Appears in 2 contracts
Samples: Merger Agreement (Ninetowns Internet Technology Group Co LTD), Merger Agreement (Wang Shuang)
Absence of Certain Changes or Events. Except for liabilities incurred Since September 30, 2003, except as set forth in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000, Schedule 5.09 of the Company and its subsidiaries have conducted their respective businesses only Disclosure Schedule or reflected in the ordinary courseCompany’s SEC Documents, and there has not been (ia) either individually or in the occurrence aggregate, any Material Adverse Effect and, to the knowledge of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy no fact or financial markets generally other than such changes which affect the Company in a manner condition exists which is not proportionate with reasonably likely to cause such a Material Adverse Effect in the effect of such changes on similarly situated companiesfuture, (iib) any declarationmaterial damage, setting aside destruction or payment of any dividend or other distribution (whether in cash, stock or property) loss with respect to any property or asset of the Company's capital stockCompany or any of its Subsidiaries, (iiic) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting change by the Company or any of its subsidiaries to any current Subsidiaries in its accounting methods, principles or former directorpractices, executive officer other than changes required by applicable law or other Key Employee of GAAP or regulatory accounting as concurred in by the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of businessCompany’s independent accountants, (Bd) any granting revaluation by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Subsidiaries of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or businessasset, including, without limitation, any reservingwriting off of notes or accounts receivable, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viiie) any transaction entry by the Company or commitmentany of its Subsidiaries into any contract or commitment (other than with respect to Loans, as hereinafter defined) of more than $30,000 or with a term of more than one (1) year that is not terminable without penalty, (f) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any of its Subsidiaries except in the ordinary course of business in an amount consistent with past practice or any redemption, purchase or other acquisition of any of its securities, (g) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or series restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or employees of related transactions the Company or commitmentsany of its Subsidiaries, or any grant of severance or termination pay, or any contract or arrangement entered into to acquire real estate make or grant any severance or termination pay, any payment of any bonus, or the taking of any other material action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of the Company or any of its Subsidiaries, (h) any strike, work stoppage, slowdown or other labor disturbance, (i) any material election made by the Company or any of its Subsidiaries for VOI development federal or state income tax purposes, (j) any change in the credit policies or procedures of the Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure materially less restrictive in any material respect, (k) any material liability or obligation of any nature (whether accrued, absolute, contingent or otherwise and whether due or to become due), including without limiting the generality of the foregoing, liabilities as guarantor under any guarantees or liabilities for taxes, other than in the ordinary course of business consistent with past practice, (l) any forgiveness or cancellation of any indebtedness or contractual obligation other than in the ordinary course of business consistent with past practice, (m) except with respect to funds borrowed by the Company or any of its Subsidiaries from the Federal Home Loan Bank, any mortgage, pledge, lien or lease of any assets, tangible or intangible, of the Company or any of its Subsidiaries with a value in excess of $1,000,000 25,000 in the aggregate (ixn) any material labor trouble acquisition or claim disposition of wrongful discharge any assets or properties having a value in excess of $50,000, or any contract for any such acquisition or disposition entered into other unlawful labor practice than loans and investment securities or action, (xo) any improper subjection lease of VOI inventory by real or personal property entered into, other than in connection with foreclosed property or in the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any ordinary course of the foregoingbusiness consistent with past practice.
Appears in 2 contracts
Samples: Merger Agreement (Falmouth Bancorp Inc), Merger Agreement (Independent Bank Corp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince August 31, since January 11996, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been any material adverse change in the business, operations, properties, assets, liabilities, condition (financial or other), results of operations or prospects of the Company, nor, except as disclosed in SCHEDULE 4.8 has there been:
(i) any damage, destruction or loss (whether or not covered by insurance) alone or in the occurrence aggregate, materially adversely affecting the properties or business of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, ;
(ii) any declarationchange in the authorized capital stock of the Company or in its securities outstanding or any change in the Stockholders' ownership interests or any grant of any options, setting aside warrants, calls, conversion rights or commitments;
(iii) any declaration or payment of any dividend or other distribution (whether in cash, respect of the capital stock or property) with respect to any of the Company's capital stockdirect or indirect redemption, (iii) any split, combination purchase or reclassification other acquisition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(iv) prior any increase in the compensation payable or to the date hereof (A) any granting become payable by the Company to the Stockholders or any of its subsidiaries officers, directors, employees, consultants or agents, except for ordinary and customary bonuses and salary increases for employees in accordance with past practice;
(v) any work interruptions, labor grievances or claims filed, or any proposed law, regulation or event or condition of any character materially adversely affecting the business or future prospects of the Company;
(vi) any sale or transfer, or any agreement to sell or transfer, any current material assets, properties or former director, executive officer or other Key Employee rights of the Company to any person, including, without limitation, the Stockholders and their affiliates;
(vii) any cancellation, or its subsidiaries of agreement to cancel, any indebtedness or other obligation owing to the Company;
(viii) any increase in compensationthe Company's indebtedness, bonus or other benefits, except for increases than accounts payable incurred in the ordinary course of business, ;
(Bix) any plan, agreement or arrangement granting by any preferential rights to purchase or acquire any interest in any of the assets, property or rights of the Company or requiring consent of any party to the transfer and assignment of any such assets, property or rights;
(x) any purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of the Company's business;
(xi) any waiver of any material rights or claims of the Company;
(xii) any material breach, amendment or termination of any material contract, agreement, license, permit or other right to which the Company is a party or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or property is subject; or
(Cxiii) any entry transaction by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in outside the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingbusiness.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Palex Inc), Merger Agreement (Palex Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince December 31, since January 12014, 2000, (a) the Company and its subsidiaries Subsidiaries have conducted their respective businesses only in all material respects in the ordinary coursecourse of business consistent with past practice, and (b) there has not been (iA) any change in the financial condition, business or results of their operations or any circumstance, occurrence or development of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in has Knowledge, that has had or is reasonably likely to have a manner which is not proportionate with the effect of such changes on similarly situated companiesCompany Material Adverse Effect, (iiB) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of share capital of the Company or any of its Subsidiaries (except for dividends or other distributions by any Subsidiary to the Company or to any Subsidiary of the Company's capital stock, ); (iiiC) any split, combination material change in any method of accounting or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting accounting practice by the Company or any of its subsidiaries Subsidiaries; (D) any making or revocation of any material Tax election, any settlement or compromise of any material Tax liability, or any change (or request to any current or former director, executive officer or other Key Employee taxing authority to change) any material aspect of the Company or its subsidiaries method of any increase in compensation, bonus or other benefits, except for increases in the ordinary course accounting of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or Subsidiaries for Tax purposes; (CE) any entry by amendment to the memorandum and articles of association (or other similar governing instrument) of the Company or any of its subsidiaries intoSubsidiaries; (F) any adoption of, resolution to approve or petition or similar proceeding or order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, of its Subsidiaries; (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (viG) any tax election by receiver, trustee, administrator or other similar Person appointed in relation to the affairs of the Company or its subsidiaries property or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program part thereof; or (xiH) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Cnshangquan E-Commerce Co., Ltd.), Merger Agreement (ChinaEquity USD Fund I L.P.)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with the SEC Reports filed subsequent to December 31, 2006 and prior to the date of this Agreement Agreement, as set forth in Section 4.08 of the Company Disclosure Letter, or the transactions as expressly contemplated herebyby this Agreement, since January 1December 31, 20002006 and prior to the date of this Agreement, each of the Company and the Subsidiaries has conducted its subsidiaries have conducted their respective businesses only business in the ordinary coursecourse consistent with past practice. Without limiting the foregoing, and there has not been not, directly or indirectly, occurred:
(i) any event, change, effect or circumstance, including any damage to, destruction or loss of any asset of the occurrence of an event Company or a Subsidiary (whether or not covered by insurance) constituting or that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(ii) any amendment or change in the organizational documents of the Company or any Subsidiary;
(iii) any change in the accounting reporting methods, principles, periods, practices, policies or procedures of the Company or any Subsidiary (other than as required by GAAP subsequent to the date of this Agreement);
(iv) any acquisition, lease or license from any person (by merger, consolidation, acquisition of stock or assets or otherwise) or sale, lease, license, disposal or Encumbrance (by merger, consolidation, sale of stock or assets or otherwise), of any assets other than in the ordinary course of business;
(v) any waiver of a valuable right or of a debt owed to the Company or any Subsidiary or satisfaction or discharge of any Encumbrance or payment of any liability of the Company or any Subsidiary, except in the ordinary course of business in an aggregate amount that is not material;
(vi) change in any compensation arrangement or contract with any present or former employee, officer, director, consultant, stockholder or other service provider of the Company or any Subsidiary or grant of any severance or termination pay to any such present or former employee, officer, director, consultant, stockholder or other service provider or increase of any benefits payable under any severance or termination pay policies or the establishment, amendment or termination of any Plan or any increase in benefits made or proposed to be made under such Plan, except as required by applicable Law or grant of any Company Stock Awards or other awards under any Company Stock Award Plan, other than (A) required pursuant to the terms of any Plan as in effect on the date of this Agreement or (B) required by Law;
(vii) declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any Equity Interests of the Company's capital stock, Company or any Subsidiary;
(iiiviii) any split, combination or reclassification of any Equity Interests of the Company's capital stock Company or any Subsidiary or any issuance of or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for for, shares of the Company's capital stock, except for issuances its Equity Interests of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any Subsidiary;
(ix) write up, write down or write off of its subsidiaries to the book value of any current or former director, executive officer or other Key Employee assets of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company and or any of its subsidiaries to any such current or former directorSubsidiary, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, as required by GAAP;
(x) any improper subjection of VOI inventory making, revoking or changing by the Company or any Subsidiary of any Tax election, changing by the Company or any Subsidiary of any method of Tax accounting, settlement or compromise by the Company or any Subsidiary of any liability for Taxes, filing by the Company or any Subsidiary of any amended Tax Return or claim for refund, surrendering any right of the Company or any Subsidiary to claim a Tax refund, or consent by the FairShare Program Company or any Subsidiary to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(xi) loans, advances or capital contributions by the Company or any agreement Subsidiary to, or investments in, any other Person, except for (A) loans, advances, capital contributions or investments between any wholly owned Subsidiary and the Company or another wholly owned Subsidiary, or (B) employee advances for expenses in the ordinary course of business;
(xii) authorization or entry by the Company or any Subsidiary into any commitment with respect to any capital expenditure;
(contingent xiii) any other action that would require Parent's consent under Section 6.01; or
(xiv) any contract by the Company or otherwise) any of the Subsidiaries to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Horowitz Seth)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as contemplated by this Agreement or the transactions contemplated herebyas set forth on Schedule 5.26, since January 1, 2000the Balance Sheet Date, the Company and has conducted its subsidiaries have conducted their respective businesses only in the ordinary coursecourse consistent with past practices, and there has not been been:
(ia) any change, by itself or together with other changes, that has affected adversely, or is likely to affect adversely, the occurrence business, operations, affairs, prospects, properties, assets, profits or condition (financial or otherwise) of an event that could reasonably be expected to result in any material adverse effect on the Company;
(b) any damage, except for an effect due to changes destruction or loss (whether or not covered by insurance) adversely affecting the economy properties or financial markets generally other than such changes which affect business of the Company;
(c) any change in the authorized capital of the Company or in a manner which is not proportionate with the effect its outstanding securities or any change in their ownership interests or any grant of such changes on similarly situated companiesany options, warrants, calls, conversion rights or commitments;
(iid) any declaration, setting aside declaration or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) or any splitdirect or indirect redemption, combination purchase or reclassification other acquisition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock;
(e) any increase in the compensation, bonus, sales commissions or fee arrangements payable or to become payable by the Company to any of its officers, directors, employees, consultants or agents, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof ordinary and customary bonuses and salary increases for employees in accordance with their present termspast practice, nor has the Company entered into, amended or terminated any Company Benefit Arrangement, Company Plan, employment, severance or other agreement relating to compensation or fringe benefits;
(iv) prior to the date hereof (Af) any granting by the Company work interruptions, labor grievances or claims filed, or any similar event or condition of its subsidiaries any character, materially adversely affecting the business or future prospects of the Company;
(g) any sale or transfer, or any agreement to sell or transfer, any current material assets, property or former director, executive officer or other Key Employee rights of the Company to any person, including, without limitation, the Stockholders or its subsidiaries of their affiliates;
(h) any increase in compensationcancellation, bonus forgiveness or release or agreement to cancel, forgive or release any indebtedness or other benefits, except for increases in obligation owing to the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or businessCompany, including, without limitation, any reserving, renewal indebtedness or residual method, or estimate obligation of practice or policy, the Stockholders and their affiliates;
(vii) any tax election by plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of the assets, property or rights of the Company or its subsidiaries or any settlement or compromise requiring consent of any income tax liability by party to the Company transfer and assignment of any such assets, property or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, rights;
(viij) any material insurance transaction other than in purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of business consistent with past practiceof the Company;
(k) any waiver of any material rights or claims of the Company;
(l) any breach, amendment or termination of any Material Contract, Permit or other material right to which the Company is a party;
(viiim) any transaction by the Company outside the ordinary course of business;
(n) any capital commitment by the Company, either individually or commitmentin the aggregate, exceeding $25,000;
(o) any change in accounting methods or series practices (including any change in depreciation or amortization policies or rates) by the Company or the revaluation by the Company of related transactions any of its assets;
(p) any creation or commitmentsassumption by the Company of any mortgage, to acquire real estate pledge, security interest or lien or other encumbrance on any asset (other than liens arising under existing lease financing arrangements which are not material and liens for VOI development Taxes not yet due and payable);
(q) any entry into, amendment of, relinquishment, termination or non- renewal by the Company of any contract, lease transaction, commitment or other right or obligation requiring aggregate payments by the Company in excess of $1,000,000 25,000;
(ixr) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory loan by the Company to any person or entity, incurring by the FairShare Program Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others;
(xis) the commencement or notice or, to the Knowledge of the Company, threat of commencement, of any lawsuit or proceeding against, or investigation of, the Company or any of its affairs; or
(t) negotiation or agreement by the Company or commitment (contingent any officer or otherwise) employee thereof to do any of the foregoingthings described in the preceding clauses (a) through (s) (other than negotiations with Purchaser and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated hereby, since January 1, 2000, date of the Company Balance Sheet to the date hereof, (a) the business of Company and each its subsidiaries have Subsidiaries has been conducted their respective businesses only in all material respects in the ordinary course, course of business consistent with past practice and (b) there has not been been: (i) any Effect that, individually or in the occurrence of an event that could aggregate, has had or would reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the have a Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesMaterial Adverse Effect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by Company or any of its Subsidiaries of any of Company’s capital stock or any other securities of Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for cash dividends by a wholly-owned Subsidiary to its parent, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries Subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for increases in the ordinary course of business, (B) or any granting payment by the Company or any of its subsidiaries to Subsidiaries of any such current bonus, or former director, executive officer any granting by Company or Key Employee any of its Subsidiaries of any increase in severance or termination pay, pay or (C) any entry by the Company or any of its subsidiaries Subsidiaries into, or any modification or amendment of, any currently effective employment, deferred compensation, consulting, 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 Company of the nature contemplated hereby, (iv) entry by Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any such current or former director, executive officer or Key Employeematerial Intellectual Property other than non-exclusive licenses granted in the ordinary course of business of Company consistent with past practice, (v) except insofar as may have been disclosed any amendment or consent with respect to any Company Material Contract in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by effect since the date of the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policyBalance Sheet, (vi) any tax election change by Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the SEC, (vii) any change by Company in its Tax elections or its subsidiaries accounting methods, or any closing agreement, settlement or compromise of any income tax liability by the Company claim or its subsidiariesassessment in respect of Taxes, except as would not be required or consent to be disclosed in the Company SEC Documentsany extension or waiver of any limitation period with respect to any claim or assessment for Taxes, (viiviii) any material insurance transaction revaluation by Company 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 consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble communication from The NASDAQ Global Market or claim by Company with respect to any potential delisting of wrongful discharge or other unlawful labor practice or actionthe Shares, (x) any improper subjection cancellation by Company or any of VOI inventory by the Company to the FairShare Program its Subsidiaries of any debts or waiver of any claims or rights of material value, (xi) any agreement sale, transfer or commitment other disposition outside of the ordinary course of business of any properties or assets (contingent whether real, personal or mixed, tangible or intangible) by Company or any of its Subsidiaries, or (xii) any agreement, whether in writing or otherwise) , to do take any action described in this Section by Company or any of the foregoingits Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Neoware Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince July 2, since January 1, 20002011, the Company and its subsidiaries Subsidiaries have conducted their respective businesses business only in the ordinary course, and during such period there has not been been:
(i) any Material Adverse Effect or, to the occurrence of an event that could Company’s Knowledge, any facts or circumstances which would reasonably be expected to result in any material adverse effect on the Company, except for an effect due or lead to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company's capital stock, ;
(iii) any split, combination or reclassification of any capital stock of the Company's capital stock Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries Subsidiaries to any current director or former director, executive officer or other Key Employee of the Company or any of its subsidiaries Subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, business or increases required under any Company Benefit Plan or Company Benefit Agreement or (B) any granting to any director or executive officer of the Company or its Subsidiaries of the right to receive any severance or termination pay not provided for under any Company Benefit Plan or Company Benefit Agreement except as required to comply with applicable Law;
(v) any payment, loan or advance to, or sale, transfer or lease of any properties or assets to any of the Company’s Affiliates, employees, officers, directors or holders of Company Common Stock or any Affiliate or immediate family member of any of the foregoing (for purposes of this Agreement, the term “immediate family” when used with respect to any party shall having the meaning set forth in Rule 16a-1 promulgated under the Securities Exchange Act of 1934, as amended), other than the payment of base salaries and director’s fees and the reimbursement of reasonable business-related expenses;
(vi) any waiver or release by the Company of any material right or claim; or
(vii) any change in accounting methods, principles or practices by the Company or any of its subsidiaries to any such current Subsidiaries materially affecting the consolidated assets, liabilities or former directorresults of operations of the Company, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar (A) as may have been disclosed in Company SEC Documents or required by a change in GAAPGAAP (or any interpretation thereof) or Regulation S-X under the Securities Act, any material (B) as may be required by a change in accounting methods Law or (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (viC) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, Documents or as required by a Governmental Entity or quasi-governmental entity (vii) including the Financial Accounting Standards Board or any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingsimilar organization).
Appears in 1 contract
Samples: Merger Agreement (Chaus Bernard Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with From February 26, 2005 to the date of this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse of business. Since February 26, and 2005, there has not been any event, change, effect or development (iincluding changes in circumstances relating to any event or effect which has occurred prior to the date hereof) except as, individually or in the occurrence of an event that could aggregate, has not had and would not reasonably be expected to result in any material adverse effect on have a Material Adverse Effect. From February 26, 2005 to the Companydate of this Agreement, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is there has not proportionate with the effect of such changes on similarly situated companies, been: (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any Company Capital Stock or any repurchase for value by the Company or any Company Subsidiary of any Company Capital Stock (other than (A) the Company's capital stock, regular quarterly cash dividend with respect to the Company Common Stock of $0.085 per share and (iiiB) repurchases of any shares of Company Restricted Stock in connection with forfeitures); (ii) any split, combination or reclassification of any of the Company's capital stock Company Capital Stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Capital Stock; (iviii) prior to the date hereof (A) except in the ordinary course of business or as required pursuant to any Company Benefit Plan or Company Benefit Agreement in effect on February 26, 2005, any granting by the Company or any of its subsidiaries Company Subsidiary to any current director or former director, executive officer or other Key Employee of the Company or its subsidiaries any Company Subsidiary of any equity-based awards or any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries Company Subsidiary to any such current or former director, executive officer or Key Employee other employee of any severance or termination pay or any increase in severance or termination pay, pay or (C) any entry by the Company or any of its subsidiaries Company Subsidiary into, or any amendment of, any employment, deferred compensation, consulting, severance, severance or termination or indemnification agreement with any such current or former director, executive officer or Key Employeeother employee, other than, in the case of clauses (viii)(B) except insofar as may have been disclosed and (C), grants of or increases in, or entry into of agreements providing for or amendments providing increases in, severance or termination pay in Company SEC Documents or required by a change respect of employees (other than directors and officers) in GAAP, the aggregate amount not in excess of $2,000,000; (iv) any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company or any Company Subsidiary materially affecting its the consolidated assets, liabilities or businessresults of operations of the Company, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, except insofar as may have been required by a change in GAAP; (viv) any tax election by with respect to the Company or its subsidiaries any Company Subsidiary, any material election (or any change to a material election) with respect to Taxes, any material change in any accounting method in respect of Taxes, any entering into of a closing agreement relating to Taxes, any waiver of a statute of limitations relating to Taxes or any settlement or compromise of any income tax liability by the Company or its subsidiariesany Company Subsidiary of any material Tax liability or refund; (vi) any redemption, except as would not be required to be disclosed in repurchase, prepayment, defeasance or other acquisition by the Company SEC Documentsor any Company Subsidiary of any of the Company’s 4.75% Senior Notes due October 2010, 4.50% Senior Notes due December 2009 or 5.25% Senior Notes due December 2014 (collectively, the “Company Senior Notes”); (vii) any acquisition, by the Company or any Company Subsidiary, by merger, consolidation, or purchase of a substantial equity interest in or portion of the assets of, or by any other manner, of any corporation, partnership, joint venture, association or other business organization or division thereof for consideration in excess of $5,000,000, (viii) incurrences or guarantees made by the Company or any Company Subsidiary of more than $5,000,000 of indebtedness for borrowed money, or modification in any material insurance transaction respect by the Company or any Company Subsidiary, of the terms of any indebtedness for borrowed money of the Company or any Company Subsidiary, (ix) any sale, lease (as lessor), license or other disposition by the Company or any Company Subsidiary other than in the ordinary course of business consistent with past practice, (viii) any transaction ; or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory agreement by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingCompany Subsidiaries to take any of the actions described in clauses (i) - (ix) above.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement or the transactions contemplated herebySEC Documents of such Company, since January 1December 31, 20002012 (the “Financial Statement Date”) and through the date of this Agreement, the such Company and its subsidiaries Subsidiaries have conducted their respective businesses only in the ordinary course, course consistent with past practices and there has not been (i) a Material Adverse Effect on such Company, nor has there been any occurrence or circumstance that, individually or in the occurrence aggregate, has had, or would with the passage of an event that could time reasonably be expected to result in any material adverse effect in, a Material Adverse Effect on the such Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) except for regular monthly distributions (in the case of such Company) not in excess of the per share amount as set forth on Schedule 3.1(f) of the Disclosure Letter of such Company with customary record and payment dates, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any outstanding security of the such Company or any Subsidiary of such Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock of such Company or any issuance or the authorization of any issuance of any other securities of such Company in respect of, in lieu of or in substitution for for, or giving the right to acquire by exchange or exercise, shares of the Company's capital stockbeneficial interest of such Company or any issuance of an ownership interest in, any Subsidiary of such Company except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsas contemplated by this Agreement, (iv) prior to the date hereof (A) any granting by the issuance of options of such Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by business or restricted shares of the Company or any capital stock of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key EmployeeCompany, (v) except insofar as may any amendment of any term of any outstanding security of such Company or any Subsidiary of such Company, (vi) any repurchase, redemption or other acquisition by such Company or any Subsidiary of such Company of any outstanding shares, stock or other securities of, or other ownership interests in, such Company or any Subsidiary of such Company, (vii) any damage or destruction to or loss of the Property of such Company, not covered by insurance, that, individually or in the aggregate, has or would have been disclosed in Company SEC Documents or required by a change in GAAPMaterial Adverse Effect on such Company, (viii) any material change in accounting methods (or underlying assumptions)methods, principles or practices or any change in any tax method or election, that, individually or in the aggregate, has or would have a Material Adverse Effect on such Company, by the such Company or any Subsidiary of such Company materially affecting its assets, liabilities or business, includingexcept insofar as may have been required by a change in GAAP or regulatory accounting principles, without limitation(ix) the entering into or amendment of any employment, any reservingconsulting, renewal severance, retention, change in control, tax gross-up, deferred compensation, special or residual methodstay bonus, or estimate any other agreement between such Company and any officer or any director of practice a Subsidiary of such Company or policyother employee or contractor of such Company, (vix) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed increase in the Company SEC Documentsamount of compensation, bonus or other benefits payable to any current or former director, trustee, officer or other employee (vii) any material insurance transaction other than in the ordinary course of business consistent with past practicepractices), of such Company or its Subsidiaries, (viiixi) any transaction grant of severance or commitmenttermination pay or benefits (or any increase in the amount of such pay or benefits) to any current or former director, trustee, officer or series other employee of related transactions such Company or commitmentsthe Subsidiaries of such Company that would be payable at or after the Effective Time, to acquire real estate for VOI development (xii) any material incurrence, assumption or guarantee by such Company or any Subsidiary of such Company of any indebtedness, (xiii) any creation or assumption by such Company or any Subsidiary of such Company of any Lien in an amount, individually or in the aggregate, in excess of $1,000,000 500,000 on any asset, (ixxiv) any material labor trouble commitment, contractual obligation (including any Franchise Agreement of such Company or claim any Management Agreement Documents of wrongful discharge or other unlawful labor practice or actionsuch Company, any lease (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent capital or otherwise) or any letter of intent), borrowing, guaranty, capital expenditure (outside the ordinary course) or transaction entered into by such Company or by any Subsidiary of such Company, or (xv) any making of any material loan, advance or capital contribution to do or investment in any of the foregoingPerson.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred Since June 30, 2006, except as contemplated by or as disclosed in connection with this Agreement or in Section 4.07 of the transactions contemplated hereby, since January 1, 2000Disclosure Schedule, the Company and has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse and in a manner consistent with past practice and, and since such date, there has not been any Material Adverse Effect or material loss, damage, destruction or other casualty to any of the Company’s tangible assets that were not replaced or covered by insurance. Additionally, since June 30, 2006, there has not been (ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on addition to or material modification of employee benefits plans, arrangements or practices applicable to employees of the Company, (b) any sale, assignment, lease or transfer of any of the assets of the Company, other than inventory, (c) any change in accounting methods, principles or practices by the Company, except for an effect due to changes as otherwise required by GAAP, (d) any material damage, destruction or loss (whether or not covered by insurance) affecting the economy any office or financial markets generally other than such changes which affect facility maintained by the Company in a manner which is not proportionate with or any other material asset of the effect of such changes on similarly situated companiesCompany, (iie) any declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, stock or property) with respect to any shares of the Company's capital stockCompany Stock, (iii) or any splitredemption, combination purchase or reclassification other acquisition of any of the Company's capital stock such shares, or any issuance or other payment to the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares stockholders of the Company's capital stock, except for issuances of Company Common Stock upon with respect to the exercise shares of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsheld thereby, (iv) prior to the date hereof (Af) any granting by the Company delay or any of its subsidiaries to any current or former director, executive officer or other Key Employee postponement of the Company or its subsidiaries payment of any increase in compensationaccounts payable and other obligations, bonus or other benefits, except for increases than in the ordinary course of business, (Bg) any granting waiver or release of any right or claim of material value, (h) any entering into any employment contract (other than agreements for at will employment) or collective bargaining agreement or modification of the terms of any existing such contract or agreement, (i) any delay or failure to make any capital expenditures contemplated by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction Company’s budget for capital expenditures other than any delay or failure in the ordinary course of business consistent with past practice, (viiij) any transaction increase in the compensation and benefits owed to any officer or commitmentemployee of the Company, or any payment of any bonus or other extraordinary compensation to any employee of the Company or entering into of any agreement to make any such increase or payment, other than any such increase or payment paid or to become payable in the ordinary course of business, or (k) any entry into a Contract to make any future capital expenditure (or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ixcapital expenditures) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoinginvolving more than $50,000.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with the SEC Documents filed and publicly available prior to the date of this Agreement or (the transactions contemplated hereby"Filed SEC Documents"), since January 1, 2000the date of the most recent Financial Statements and until the date hereof, the Company and its subsidiaries Subsidiaries have conducted their respective businesses only in the ordinary courseOrdinary Course of Business, and there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse event, change or effect having a Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's its capital stock or any issuance or the authorization of any issuance of any capital stock, warrant, option or any other securities in respect of, in lieu of or in substitution for shares of the Company's its capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (Aa) any granting by the Company or any of its subsidiaries Subsidiaries to any current director or former director, executive officer or other Key Employee of the Company or its subsidiaries Subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course Ordinary Course of businessBusiness or as was required under employment agreements in effect as of the date of the most recent Financial Statements, (Bb) any granting by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements, plans or arrangements in effect as of the date of the most recent Financial Statements or (Cc) any entry by the Company or any of its subsidiaries into, or any amendment of, Subsidiaries into any employment, deferred compensation, consulting, severance, severance or termination or indemnification agreement with any such current or former director, executive officer or Key Employee, officer; (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (damage, destruction or underlying assumptions)loss, principles whether or practices not covered by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, insurance; (vi) any tax election by the Company Indebtedness created, incurred, assumed or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesguaranteed, except as would not be required to be disclosed involving more than $50,000 in the Company SEC Documents, aggregate; (vii) any postponement or delay (outside the Ordinary Course of Business) in 10 14 any material insurance transaction respect of, the payment of accounts payable and other than in the ordinary course of business consistent with past practice, liabilities or obligations; (viii) any transaction cancellation, compromise, waiver or commitment, release of any right or claim (or series of related transactions rights or commitments, to acquire real estate for VOI development claims) involving more than $50,000 in excess of $1,000,000 the aggregate; (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, action taken expressly prohibited by Section 5.1; (x) any improper subjection acceleration, termination, modification, amendment, or cancellation of VOI inventory by any material Contract (or series of Contracts), including the Strox Xxxeement or any Contract with a distributor, to which the Company is a party or to the FairShare Program or which it is bound; and (xi) any agreement or commitment (contingent or otherwise) the Company has not committed to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Petes Brewing Co)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as contemplated by this Agreement or the transactions contemplated hereby------------------------------------ Agreement, since January 1, 20001998, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been (ia) any damage, destruction or casualty loss to the occurrence physical properties of an event that could reasonably be expected to result in the Company (whether or not covered by insurance), materially and adversely affecting the business, operations, prospects or financial condition of the Company, (b) any material adverse effect on change in the business, operations, financial condition or results of operations or prospects of the Company, (c) any entry into any transaction, commitment or agreement (including, without limitation, any borrowing) material to the Company, except for an effect due to changes affecting transactions, commitments or agreements in the economy or financial markets generally other than such changes which affect ordinary course of business consistent with past practice, and which, if occurring after the Company date hereof, would be in a manner which is not proportionate compliance with the effect of such changes on similarly situated companiesSection 4.1, (iid) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) property with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or other securities, any issuance repurchase, redemption or other acquisition by the Company of any capital stock or other securities, or any agreement, arrangement or commitment by the Company to do so, (e) any increase that is material in the compensation payable or to become payable by the Company to its directors, officers, employee or agents or any increase in the rate or terms of any bonus, or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers, employees or agents, (f) any sale, transfer or other disposition of, or the authorization creation of any issuance of Lien upon, any other securities in respect of, in lieu of or in substitution for shares part of the Company's capital stockassets, tangible or intangible, except for issuances sales of Company Common Stock upon the exercise inventory and use of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any supplies and collections of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than accounts receivables in the ordinary course of business consistent with past practice, or any cancellation or forgiveness of any debts or claims by the Company, (viiig) any transaction change in the relations of the Company with or commitmentloss of its customers or suppliers, of any loss of business or increase in the cost of inventory items or change in the terms offered to customers, which would materially and adversely affect the business, operations or financial condition of the Company, or series of related transactions (i) any capital expenditure (including any capital leases) or commitments, to acquire real estate for VOI development commitment therefor by the Company in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing50,000.
Appears in 1 contract
Samples: Stock Purchase Agreement (Seirios International Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with Section 2.9 of the Company Schedule or in the Unaudited Financial Statements, or as otherwise provided in this Agreement or the transactions contemplated herebyAgreement, since January 110, 20002006, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s stock, or any purchase, redemption or other acquisition by the Company of any of the Company’s capital stockstock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's ’s capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by Company 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 the Company of the nature contemplated hereby, (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any transaction or commitmentissuance of capital stock of the Company, or series of related transactions or commitmentsother than pursuant to the Company’s Stock Option Plans in the ordinary course, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or claim writing off notes or accounts receivable or any sale of wrongful discharge assets of the Company other than in the ordinary course of business, or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program agreement, whether written or (xi) any agreement or commitment (contingent or otherwise) oral, to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Services Acquisition Corp. International)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated herebydate of the latest Financial Statement of the Companies, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been:
(i) Any change in the occurrence financial condition, assets, liabilities, or business of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally Companies other than such changes which affect do not, individually or in the Company in aggregate, have a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(ii) any Any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the either Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization redemption of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the either Company's capital stock, except or any change in the authorized, issued or outstanding capital stock of either Company, or agreement or commitment with respect to any thereof;
(iii) Any increase in the compensation payable or to become payable by either Company to any of its directors, officers, employees or agents, whose total compensation for issuances services rendered is currently at an annual rate of Company Common Stock upon the exercise of Company Stock Options more than $25,000, or Company Warrantsany bonus, in each case awarded prior incentive compensation, service award or other like benefit, granted, made or accrued, contingently or otherwise, to or to the date hereof in accordance with their present termscredit of any of the directors, officers, employees or agents thereof, or any employee welfare, pension, retirement or similar payment or arrangement made or agreed to by either Company, except as set forth on Schedule 6(j) attached;
(iv) prior to the date hereof (A) Any labor trouble, or any granting by the controversies or unsettled grievances pending or threatened, between either Company or and any of its subsidiaries employees or a collective bargaining organization representing or seeking to represent such employees;
(v) Any conducting of business by either Company other than in the ordinary course;
(vi) Any material adverse change in relationship with any current substantial customer;
(vii) The entry into, termination of, receipt of notice of termination of, or former directoramendment of or modification to (x) any license, executive officer distributorship, dealer, supplier, sales representative, joint venture, credit or similar agreement, or (y) any contract or commitment (other Key Employee than for the sale of the products by a Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting involving a total remaining commitment by the or to either Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 5,000;
(viii) Any borrowing or lending of money by either Company;
(ix) any material labor trouble Capital expenditures, or claim the incurring of wrongful discharge or other unlawful labor practice or actionliability therefor, in an aggregate amount exceeding $150,000; or
(x) Any loans to or guaranty of the indebtedness of the Sellers, any improper subjection employee of VOI inventory by the Company to the FairShare Program Companies or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoinghis or her family members.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with From May 31, 2007 through the date of this Agreement Agreement, except as otherwise contemplated or permitted by this Agreement, the transactions contemplated hereby, since January 1, 2000, businesses of the Company and its subsidiaries Subsidiaries have been conducted their respective businesses only in the ordinary course, course of business consistent with past practice and there has not been been:
(ia) the occurrence any event, development or state of an event circumstances that could would reasonably be expected to result have, individually or in the aggregate, a Company Material Adverse Effect;
(b) any amendment of any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect term of any outstanding security of the Company in a manner which is not proportionate with the effect or any of such changes on similarly situated companies, its Subsidiaries;
(iic) any declarationincurrence, setting aside assumption or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting guarantee by the Company or any of its subsidiaries Subsidiaries of any indebtedness for borrowed money, other than indebtedness under the Debt Agreements;
(d) any creation or other incurrence by the Company or any of its Subsidiaries of any Lien on any material asset, other than in the ordinary course of business consistent with past practices;
(e) any making of any loan, advance or capital contributions to or investment in any Person, other than (i) loans, advances or capital contributions to or investments in its Subsidiaries and (ii) the extension of trade credit, in each case in the ordinary course of business consistent with past practices;
(f) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any of its Subsidiaries that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(g) any transaction or commitment made, or any contract or agreement entered into, by the Company or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any assets) that involves aggregate payments or receipts by the Company or any of its Subsidiaries of $250,000 or more (or annual payments or receipts of $100,000 or more) or any relinquishment by the Company or any of its Subsidiaries of any contract or other right, in either case, material to the Company and its Subsidiaries, taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement;
(h) any (i) increase or change in any severance or termination pay or protection to (or amendment to any existing arrangement with) any current or former director, executive officer or other Key Employee employee of the Company or any of its subsidiaries Subsidiaries, (ii) entering into any employment, deferred compensation, change of control, sale bonus or other similar agreement or any change of control, sale bonus or other plan or arrangement (or any amendment to any such existing agreement, plan or arrangement) with any director, officer or employee of the Company or any of its Subsidiaries (other than any such agreement or amendment entered into in the ordinary course of business, consistent with past practices, provided that, in the aggregate, all such new commitments shall not entail any actual or contingent liability to the Company upon termination of employment in an amount in excess of $100,000), (iii) establishment, adoption or amendment (except as required by applicable Law or expressly contemplated by this Agreement) of any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, incentive or other benefit plan or arrangement covering any director, officer or employee of the Company or any of its Subsidiaries or (iv) increase in compensation, bonus or other benefitsbenefits payable to any director, except for increases in the ordinary course officer or employee of business, (B) any granting by the Company or any of its subsidiaries to any such current or former directorSubsidiaries, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, ;
(viiii) any transaction or commitmentlabor dispute, other than routine individual grievances, or series any activity or proceeding by a labor union or representative thereof to organize any employees of related transactions the Company or commitmentsany of its Subsidiaries or any lockouts, strikes, slowdowns, work stoppages or, to acquire real estate for VOI development in excess the Knowledge of $1,000,000 the Company, threats thereof by or with respect to those employees; or
(ixj) any material labor trouble Tax election made or changed, any annual Tax accounting period changed, any method of Tax accounting adopted or changed, any Tax Returns amended materially or claims for material Tax refunds filed, any closing agreement entered into, any material Tax claim, audit or assessment settled, or any right to claim of wrongful discharge a material Tax refund, offset or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingreduction in Tax liability surrendered.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince December 31, since January 11997, 2000------------------------------------ except as disclosed on Schedule 4(j) hereto, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been:
(i) Any change in the occurrence financial condition, assets, liabilities, prospects, or business of an event that could reasonably be expected to result in Corporation or any material adverse effect on the CompanySubsidiary, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect have not, individually or in the Company in aggregate, been materially adverse to the Corporation and its Subsidiaries, taken as a manner which is not proportionate with the effect of such changes on similarly situated companies, whole;
(ii) any Any declaration, setting aside or payment of any dividend or other distribution (whether in cashrespect of the Corporation's or any Subsidiary's capital stock, or any redemption of Corporation's or any Subsidiary's capital stock, or any change in the authorized, issued or outstanding capital stock of Corporation or property) any Subsidiary, or agreement or commitment with respect to any of the Company's capital stock, thereof;
(iii) any splitAny increase, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, in the compensation payable or to become payable by Corporation or a Subsidiary to any of its directors, officers, employees or agents whose total compensation for services rendered is currently at an annual rate of more than $25,000, or any bonus, incentive compensation, service award or other like benefit, granted, made or accrued, contingently or otherwise, to or to the credit of any of the directors, officers, employees or agents thereof, other than in the ordinary course of business consistent with past practice, or any employee welfare, pension, retirement or similar payment or arrangement made or agreed to by Corporation or a Subsidiary;
(viiiiv) Any significant labor trouble, or any material controversies or unsettled grievances pending or threatened, between Corporation or a Subsidiary and any of their respective employees or a collective bargaining organization representing or seeking to represent such employees;
(v) Any conducting of business by Corporation or a Subsidiary other than in the ordinary course;
(vi) To the Corporation's and Shareholders' knowledge, any loss of a customer or material change in relationship with any supplier, whose purchases from or by the Corporation and the Subsidiaries, as applicable, during the twelve months preceding the date of this Agreement exceeded $50,000.
(vii) The entry into, termination of, receipt of notice of termination of, or amendment of or modification to (x) any transaction license, distributorship, dealer, supplier, sales representative, joint venture, credit or commitment, similar agreement or series of related transactions (y) any contract or commitments, commitment involving a total remaining commitment by or to acquire real estate for VOI development the Corporation or a Subsidiary in excess of $1,000,000 100,000;
(viii) Any borrowing or lending of money by Corporation or a Subsidiary other than drawings on the Corporation's line(s) of credit in the ordinary course of business;
(ix) any material labor trouble Any individual capital expenditure, or claim incurring of wrongful discharge or other unlawful labor practice or actionliability therefor, in excess of $10,000; or
(x) any improper subjection of VOI inventory by the Company Any loans to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any guaranty of the foregoingindebtedness of any Shareholder, employee or family member of any thereof.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000, Section 4.24 of the Company and its subsidiaries have conducted their respective businesses only in Disclosure Schedule, from the ordinary coursedate of the Balance Sheet to the date of this Agreement, and there has not been except as contemplated by this Agreement: (i) the occurrence of an event that could Company has conducted its businesses in the ordinary course consistent with past practice; (ii) there has not occurred any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company Material Adverse Change in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, ; and (iii) and during such period there has not been:
(a) any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be expected to result in a Material Adverse Change in respect of the Company;
(b) any split, combination or reclassification of any of the Company's capital stock Company Share Capital or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Shares Capital;
(ivc) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, ; (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee employee of any increase in severance or termination pay, ; or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, into any employment, deferred compensation, consulting, severance, severance or termination or indemnification agreement with any such current or former director, executive officer or Key Employeeemployee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAPeach case, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, practice or as permitted by this Agreement;
(viiid) any transaction incurrence of material indebtedness, by the Company;
(e) any termination or commitmentmaterial amendment of any Contract that is material to the Company taken as a whole to which the Company is a party, and the Company has not entered into any new Contract that is material to the Company with any Person, except in the ordinary course of business consistent with past practice;
(f) any change in accounting methods, principles or series practices by the Company materially affecting the consolidated assets, liabilities or results of related transactions or commitmentsoperations of the Company, to acquire real estate for VOI development except insofar as may have been required by a change in excess of $1,000,000 GAAP; or
(ixg) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory elections with respect to Taxes by the Company to or settlement or compromise by the FairShare Program Company of any material Tax liability or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingrefund.
Appears in 1 contract
Samples: Arrangement Agreement (Thompson Creek Metals CO Inc.)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyTransactions, since January 1December 31, 20002003, each of the Company and the Company Subsidiary has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse and in a manner consistent with past practice, and there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesMaterial Adverse Change, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's ’s or the Company Subsidiary’s capital stock, (iii) any split, combination or reclassification of any of the Company's Company or the Company Subsidiary’s capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's Company or the Company Subsidiary’s capital stock, except for issuances of Company Common Stock upon under the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsOption Plans, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries the Company Subsidiary to any current or former director, executive officer or other Key Employee employee of the Company or its subsidiaries the Company Subsidiary of any increase in compensation, bonus or other benefits, except for normal increases in the ordinary course of businessbusiness or in connection with the hiring or promotion of any such director, officer or employee or increases required under any written employment agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents, (B) any granting by the Company or any of its subsidiaries the Company Subsidiary to any such current or former director, executive officer or Key Employee employee of any severance or termination pay or any increase in severance or termination pay, except in connection with the hiring of any such officer, or (C) any entry by the Company or any of its subsidiaries the Company Subsidiary into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer officer, or Key Employeeemployee, except in connection with the hiring of any such director or officer, (v) except insofar as may have been disclosed in Company SEC Documents or be required by a change in GAAP, any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company or the Company Subsidiary materially affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by that would have a Material Adverse Effect or materially affect any of the Company’s or the Company or its subsidiaries Subsidiary’s tax attributes or any settlement or compromise of any material income tax liability by of the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC DocumentsSubsidiary, (vii) any material insurance transaction other than sale, exchange, transfer, disposition or grant of any Lien on any real property of the Company or the Company Subsidiary in the ordinary course of business consistent with past practice, an amount exceeding $250,000; (viii) any transaction event or commitmentchange that had a Material Adverse Effect or constituted a Material Adverse Change, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble action that would have been prohibited by Section 4.01 had it been in effect or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with From the date of the Company Balance Sheet to the date of this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and has conducted its subsidiaries have conducted their respective businesses only business in the ordinary coursecourse in all material respects, and during such period there has not been been:
(ia) any change, event, effect or occurrence that, individually or in the occurrence of an event that could aggregate, has had or is reasonably be expected likely to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the have a Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(iib) any declaration, setting aside or payment of any dividend on, or making of any other distribution (whether in cash, stock or property) with respect to to, any capital stock of the Company's capital stock, ;
(iiic) any split, combination or reclassification of any capital stock of the Company's capital stock Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company's capital stock;
(d) (i) any material increase by the Company or any Company Subsidiary to any current or former director, officer, employee or independent contractor of the Company or any Company Subsidiary (each, a “Company Personnel”) in compensation or granting or amending any awards under any Company Benefit Plan (not including granting any equity or equity-based compensation), except for issuances in the ordinary course of business consistent with past practice or as was required under employment agreements included in or described in the Filed Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsSEC Documents, (iv) prior to the date hereof (Aii) any granting by the Company or any of its subsidiaries Company Subsidiary to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries Personnel of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any material increase in severance or termination pay, except as was required under any employment, severance or termination agreements included in or described in the Filed Company SEC Documents, (Ciii) any entry by the Company or any of its subsidiaries into, or any amendment of, Company Subsidiary into any employment, deferred compensation, consulting, severance, severance or termination or indemnification agreement with any such current Company Personnel or former director, executive officer or Key Employee, (viv) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material amendment to a Company Benefit Plan or Company Benefit Agreement;
(e) any change in accounting methods (or underlying assumptions)methods, principles or practices by the Company, any Company Subsidiary or, to the knowledge of the Company, Vivelle materially affecting its the consolidated assets, liabilities or businessresults of operations of the Company, includingexcept as may have been required (i) by GAAP (or any interpretation thereof), without limitationincluding pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by Law, including Regulation S-X under the Securities Act;
(f) any material elections with respect to Taxes by the Company, any reservingCompany Subsidiary or, renewal to the knowledge of the Company, Vivelle or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise by the Company, any Company Subsidiary or, to the knowledge of the Company, Vivelle of any income tax material Tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, refund;
(viig) any material insurance transaction damage, destruction or loss, whether or not covered by insurance, to any material assets of the Company, any of the Company Subsidiaries or, to the knowledge of the Company, Vivelle; or
(h) any discounting, rebate, promotional or other special incentive arrangements with respect to the sale of any finished products by the Company, any Company Subsidiary or, to the knowledge of the Company, Vivelle, other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or (a) Since the transactions contemplated hereby, since January 1, 2000, date of the Company and its subsidiaries have conducted their respective businesses only in the ordinary courseBalance Sheet, and there has not been (i) the occurrence any event, occurrence, development or state of an event circumstances or facts that could has had or would reasonably be expected to result to, individually or in any material adverse effect on the Companyaggregate, except for an effect due to changes affecting have a Company Material Adverse Effect.
(b) From the economy or financial markets generally other than such changes which affect date of the Company Balance Sheet to the date of this Agreement, the Company has conducted its business in a the ordinary course in substantially the same manner which is as previously conducted, and during such period there has not proportionate with been, nor has the effect of such changes on similarly situated companiesCompany or any Company Subsidiary authorized, agreed or committed to take any action, or failed to take any action that would result in:
(iii) any declaration, setting aside or payment of any dividend on, or making of any other distribution (whether in cash, stock or property) with respect to to, any capital stock of the Company's capital stock, ;
(iiiii) any split, combination or reclassification of any capital stock of the Company's capital stock Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(iv) prior to the date hereof (Aiii) any granting change in accounting methods, principles or practices by the Company or any Company Subsidiary materially affecting the consolidated assets, liabilities or results of its subsidiaries operations of the Company, except as may have been required (A) by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any current similar organization, or former director(B) by Law, executive officer including Regulation S‑X under the Securities Act;
(iv) any sale, lease (as lessor), license or other Key Employee disposition of (including through any “spin-off” or by permitting any rights in Intellectual Property to lapse), or pledge, encumbrance or other Lien imposed upon (other than a Permitted Lien), any properties or assets that are material, individually or in the aggregate, to the Company or its subsidiaries of any increase in compensationand the Company Subsidiaries, bonus taken as a whole, except (A) sales, leases, or other benefitsdispositions of (1) inventory and (2) excess or obsolete properties or assets, except for increases in each case, in the ordinary course of business, (B) any granting by the Company or any grant of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than non-exclusive licenses for Intellectual Property in the ordinary course of business consistent pursuant to agreements with past practicecontract manufacturers, (viii) any transaction or commitment, or series contract research organizations and other service providers where the license is incidental to and not the primary purpose of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program agreement or (xiC) any agreement abandonments of patent applications in the ordinary course of prosecution, where a continuation, continuation-in-part, request for continued examination or commitment divisional application (contingent or otherwise) to do foreign equivalent of any of the foregoing) is filed;
(v) any material election with respect to Taxes by the Company or any Company Subsidiary or settlement or compromise by the Company or any Company Subsidiary of any material Tax liability or refund other than, in each case, in the ordinary course of business;
(vi) any settlement of any Proceeding involving or against the Company or any of the Company Subsidiaries that is material to the Company and the Company Subsidiaries, taken as a whole; or
(vii) a breach of any provision of Sections 5.01(d), (h), (i), (j) or (k), had such action, authorization, agreement, commission, or failure occurred after the date hereof without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (AveXis, Inc.)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with the Company SEC Documents filed prior to the date of this Agreement and publicly available or disclosed in SECTION 3.1(g) of the transactions contemplated herebyCompany Disclosure Schedule, since January July 1, 20002002, the Company and has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse consistent with prior practice, and there has not been (i) the occurrence of an event that could reasonably be expected to result any Material Adverse Change in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's its capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee employee of the Company or any of its subsidiaries of (A) any increase in compensation, compensation or (B) any right to participate in (by way of bonus or other benefitsotherwise) the profits of the Company or any of its subsidiaries, except for increases except, in each case, in the ordinary course of businessbusiness consistent with prior practice or as was required under employment agreements or salary or wage policies in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed prior to the date of this Agreement (a list of all such employment agreements or salary or wage policies being set forth in SECTION 3.1(g) of the Company Disclosure Schedule), (Bv) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee employee of any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed prior to the date of this Agreement and publicly available, (Cvi) any entry into, or renewal or modification, by the Company or any of its subsidiaries, of any employment, consulting, severance or termination agreement with any officer, director or employee of the Company or any of its subsidiaries, (vii) any damage, destruction or loss, whether or not covered by insurance, that has or could have a Material Adverse Effect on the Company, (viii) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or business, or (ix) since March 31, 2003, any other action taken by the Company or any of its subsidiaries intowhich, if Section 4.1 had then been in effect, would have been prohibited by such Article if taken without Parent's consent (and no agreement, understanding, obligation or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with commitment to take any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptionsaction exists), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince December 31, since January 1, 20001997, the Company and its subsidiaries have conducted their respective businesses only in the ordinary courseand usual course (excluding the incurrence of expenses in connection with this Agreement and the transactions contemplated hereby). Except as disclosed in Section 5.7 of the Company Disclosure Schedule, and since December 31, 1997, there has not been (i) the any event, change, circumstance, fact or occurrence of an event that could (whether or not covered by insurance) which has had, or is reasonably be expected likely to result in have, a Company Material Adverse Effect, (ii) any material adverse effect on change by the Company in its accounting methods, principles or practices, (iii) any entry by the Company into any agreement, commitment or transaction material to the Company, except for an effect due to changes affecting in the economy ordinary course of business and consistent with past practice or financial markets generally other than such changes which affect the Company except in a manner which is not proportionate connection with the effect negotiation and execution and delivery of such changes on similarly situated companiesthis Agreement and the Transaction Documents, (iiiv) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, respect of any capital stock or property) with respect to any of the Company's capital stockCompany or any redemption, (iii) any split, combination purchase or reclassification other acquisition of any of the Company's capital stock securities, (v) other than pursuant to the Company Plans (as hereinafter defined) or as required by law, any issuance increase in, amendment to, or the authorization establishment of any issuance of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsemployee benefit plan, (ivvi) prior to the date hereof (A) granted any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any general increase in compensation, bonus or other benefitsbenefits payable to the employees of the Company, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than occurring in the ordinary course of business in accordance with its customary practice, (vii) paid any bonus to the employees of the Company except in the ordinary course and consistent with past practice, (viii) any transaction incurrence of indebtedness for borrowed money or commitmentassumption or guarantee of indebtedness for borrowed money by the Company, or series the grant of related transactions or commitmentsany lien on the material assets of the Company to secure indebtedness for borrowed money, to acquire real estate for VOI development in excess of $1,000,000 (ix) any sale or transfer of any material labor trouble assets of the Company other than in the ordinary course of business and consistent with past practice, or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory loan, advance or capital contribution to or investment in any person by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingCompany.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or (a) Since the transactions contemplated hereby, since January 1, 2000, date of the Company and its subsidiaries have conducted their respective businesses only in the ordinary courseBalance Sheet, and there has not been (i) the any change, event, condition, development, circumstance, effect or occurrence of an event that could has had or would reasonably be expected to result have, individually or in any material adverse effect on the Companyaggregate, except for an effect due to changes affecting a Company Material Adverse Effect.
(b) From the economy or financial markets generally other than such changes which affect date of the Company Balance Sheet to the date of this Agreement, the Company has conducted its business in a the ordinary course in substantially the same manner which is as previously conducted, and during such period there has not proportionate with the effect of such changes on similarly situated companies, been:
(iii) any declaration, setting aside aside, accrual or payment of any dividend on, or making of any other distribution (whether in cash, stock stock, equity securities or property) with in respect to of, any of capital stock of the Company's capital stock, ;
(iiiii) any split, combination or reclassification of any capital stock of the Company's capital stock Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company's capital stock, ;
(iii) except for issuances as required pursuant to the terms of any Company Common Stock upon the exercise of Company Stock Options Benefit Plan or Company WarrantsBenefit Agreement, in each case awarded prior to effect as of the date hereof in accordance with their present termsof the Company Balance Sheet, (iv) prior to the date hereof (A) any granting by to any director of the Company or any of its subsidiaries to any current employee or former director, executive officer or other Key Employee individual service provider of the Company or its subsidiaries of any increase in compensation, bonus (2) any granting to any director, employee or individual service provider of the Company of any increase in severance or termination pay or (3) any entry by the Company into any employment, consulting, severance or termination agreement with any director, employee or individual service provider of the Company whose total annual compensation exceeds $150,000, other than as disclosed in the Company SEC Documents;
(iv) any change in accounting methods, principles or practices by the Company (other than any immaterial change thereto), except as may have been required (A) by GAAP (or any authoritative interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (B) by Law, including Regulation S-X promulgated under the Securities Act, in each case, as agreed to by the Company’s independent public accountants;
(v) any sale, lease (as lessor), license or other benefitsdisposition of (including through any “spin-off”), or pledge, encumbrance or other Lien imposed upon (other than a Permitted Lien), any properties or assets (other than Intellectual Property) that are material, individually or in the aggregate, to the Company except (i) sales or other dispositions of inventory and excess or obsolete properties or assets in the ordinary course of business and (ii) pursuant to Contracts to which the Company is a party made available to Parent and in effect prior to the date of the Company Balance Sheet;
(vi) any sale, assignment, license or transfer or disposition of any Company Intellectual Property owned by the Company that is material, individually or in the aggregate, to the Company, except for increases (i) non-exclusive licenses (including sublicenses) to Intellectual Property granted in the ordinary course of business, (Bii) pursuant to Contracts to which the Company is a party made available to Parent and in effect prior to the date of the Company Balance Sheet, or (iii) abandonment or other disposition of any Company Registered Intellectual Property at the end of the applicable statutory term, in the ordinary course of prosecution or otherwise in the ordinary course of business;
(vii) any granting acquisition, in a single transaction or a series of related transactions, whether by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other similar manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other Person (other than the Company), with an aggregate amount of consideration paid or transferred by the Company and in excess of $250,000;
(viii) any filing of or change to a material Tax election, any change to an annual Tax accounting period or any adoption of its subsidiaries or change to a material method of Tax accounting, any such current or former directorfiling of an amended material Tax Return, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by into a closing agreement within the Company meaning of Section 7121 of the Code (or any similar provision of its subsidiaries intostate, local or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptionsforeign Law), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of a material Tax liability or refund;
(ix) any income tax liability by settlement or compromise of, or written offer or proposal to settle or compromise, any Proceeding involving or against the Company except for settlements or its subsidiaries, except as would compromises of non-criminal Proceedings that (A) did not be required to be disclosed in involve the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course payment of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development amounts in excess of $1,000,000 250,000 in the aggregate by the Company, (ixB) did not impose any material labor trouble restriction on the business or claim activities of wrongful discharge the Company or other unlawful labor practice any current or actionfuture subsidiaries of the Company or Parent or its current or future subsidiaries, (C) did not involve the admission of wrongdoing by the Company, and (D) did not involve any license, cross license or similar arrangement with respect to any Intellectual Property or products of the Company; or
(x) any improper subjection agreement on the part of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with the Company SEC Reports filed prior to the date of this Agreement or the transactions Agreement, and except as contemplated herebyby this Agreement, since January 1September 30, 20002011, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's ’s capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company into any currently effective employment, severance, or (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of the Company, or (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory revaluation by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do of any of their respective assets, including, without limitation, writing down the foregoingvalue of capitalized inventory or writing off notes or accounts receivable.
Appears in 1 contract
Samples: Securities Exchange Agreement (Globalwise Investments Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement or Section 3.08 of the transactions contemplated herebyDisclosure Schedule, since January 1December 31, 20002006, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been no:
(A) Material Adverse Change;
(i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for normal periodic increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction increase in the annual rates of base salary or commitment, wages payable or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory become payable by the Company or any of its Affiliates to any of the current or former employees, directors or consultants of the Company or the Business, (ii) bonus, incentive compensation, service award or other like benefit granted, made or accrued, contingently or otherwise, for or to the FairShare Program credit of any of the current or former employees, directors or consultants of the Company or the Business, except in the ordinary course of business consistent with past practices, (iii) welfare, pension, retirement, profit-sharing, incentive compensation or similar plan, program, payment or arrangement established or materially amended by the Company or any of its Affiliates for any of the current or former employees, directors or consultants of the Company or the Business or (xiiv) new employment or severance agreement that covers current or former employees, directors or consultants of the Company or the Business;
(C) any agreement (i) sale, assignment or transfer of any Assets or assets of the Business other than sales of Inventory in the ordinary course of business consistent with past practice or (ii) sale, assignment or transfer of any Assets or assets of the Business to Seller or its Affiliates;
(D) cancellation of any Indebtedness or waiver of any rights of substantial value with respect to the Company or the Business;
(E) entry into, cancellation, termination or material amendment of any Material Contract (including any submission or issuance of a Loss Bid) or material License issued to the Company or the Business;
(F) capital expenditure or incurrence of liability therefor by the Company or the Business, other than capital expenditures that do not, individually or in the aggregate, exceed $100,000;
(G) failure to operate the Business in the ordinary course consistent with past practice or to use reasonable efforts to preserve the Business intact, to keep available the services of the Personnel, and to preserve the goodwill of the Business or the Business’s suppliers, customers and others having business relations with the Company or the Business;
(H) change in accounting methods or practices by the Company or, with respect to the Business, Seller or any of its other Affiliates;
(I) revaluation by the Company or, with respect to the Business, Seller or its other Affiliates, as applicable, of any Assets or any assets of the Business or properties of the Company or the Business, including writing off notes or accounts receivable or revaluing inventory;
(J) damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting any of the assets, properties, business or prospects of the Company or the Business;
(K) Indebtedness incurred by the Company for borrowed money or any commitment to incur Indebtedness entered into by the Company, or any loans made or agreed to be made by the Company;
(L) declaration, setting aside for payment or payment of dividends or distributions, other than Permitted Distributions, in respect of any capital stock or other Equity Securities of the Company, or any redemption, purchase or other acquisition by the Company of any capital stock or other Equity Securities of the Company;
(M) issuance or reservation for issuance by the Company of, or commitment (contingent including any option or otherwiseother equity-incentive award) to issue or reserve for issuance any capital stock or other Equity Security of the Company;
(N) Encumbrance created, otherwise incurred or otherwise suffered on any Asset or any asset of the Business, other than Permitted Encumbrances;
(O) execution, termination, or material amendment of any lease for real or personal property of the Company or related to the Business, except for the execution or termination of any lease for personal property requiring annual payments by the Company of less than $15,000;
(P) Tax election or revocation of any Tax election, change in method of Tax accounting, amendment of any Tax Return, settlement or compromise of any claim, notice, audit report or assessment in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(Q) agreement by the Company or the Business to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for ------------------------------------ liabilities incurred in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto and except as expressly contemplated by this Agreement or the transactions contemplated herebyotherwise already disclosed to Parent, since January 1December 31, 20002015, the Company and its subsidiaries Group Companies have conducted their respective businesses only in all material respects in the ordinary course, course of business consistent with past practice and there has not been been:
(ia) any change in the financial condition, business or results of their operations or any circumstance, event, occurrence of an event that could or development which has had, or would reasonably be expected to result have, individually or in any material adverse effect on the Companyaggregate, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(iii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of share capital of the Company or any of its Subsidiaries (except for dividends or other distributions by any Subsidiary to the Company or to any wholly-owned Subsidiary of the Company's capital stock, ) or (iiiii) any splitredemption, combination repurchase or reclassification other acquisition of any share capital of the Company's capital stock Company or any issuance of its Subsidiaries, except (A) the withholding of Company’s securities to satisfy Tax obligations with respect to Company Share Awards or (B) the authorization acquisition by the Company of any issuance of any other its securities in respect of, in lieu of or in substitution for shares of connection with the Company's capital stock, except for issuances forfeiture of Company Common Stock upon Share Awards or (C) the acquisition by the Company of its securities in connection with the net exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof Share Awards in accordance with their present terms, the terms thereof;
(iv) prior to the date hereof (Ac) any granting change in any method of accounting or accounting practice by the Company or any of its subsidiaries Subsidiaries;
(d) any making or revocation of any material Tax election, any settlement or compromise of any material Tax liability, or any change (or request to any current or former director, executive officer or other Key Employee taxing authority to change) of the Company or its subsidiaries method of any increase in compensation, bonus or other benefits, except for increases in the ordinary course accounting of business, (B) any granting by the Company or any of its subsidiaries Subsidiaries for Tax purposes;
(e) (i) any material increase in the compensation or benefits payable or to become payable to its officers or employees (except for increases for employees in the ordinary course of business and consistent with past practice) or (ii) any such current establishment, adoption, entry into or former amendment of any collective bargaining, bonus, profit sharing, equity, thrift, compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, executive officer or Key Employee employee with the title of any increase in severance vice president (or termination payits equivalent) or above, or except to the extent required by applicable Laws;
(Cf) any entry by amendment to the memorandum and articles of association (or other similar governing instrument) of the Company or any of its subsidiaries intoSubsidiaries;
(g) any adoption of, resolution to approve or petition or similar proceeding or order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, of its Subsidiaries;
(v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vih) any tax election by receiver, trustee, administrator or other similar Person appointed in relation to the affairs of the Company or its subsidiaries property or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, part thereof; or
(vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xii) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement or Section 3.7 of the transactions contemplated herebyCompany Disclosure Schedule, since January 1, 2000the Reference Balance Sheet Date, the Company and each Company Subsidiary has conducted its subsidiaries have conducted their respective businesses only business in the ordinary coursecourse consistent with past practice, and except as contemplated by this Agreement, there has not been occurred (i) the occurrence of an event that could reasonably be expected any purchase or other acquisition of, sale, lease, disposition, or other transfer of, or mortgage, pledge or subjection to result in any material adverse effect on the Companyencumbrance or lien on, except for an effect due to changes affecting the economy any material asset, tangible or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect intangible, of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former directorCompany Subsidiary, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases than in the ordinary course of business, ; (Bii) any granting change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its subsidiaries to Company Subsidiary or any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry revaluation by the Company or any Company Subsidiary of any of its subsidiaries intoassets; (iii) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of the Company Capital Stock, or any amendment ofsplit-up or other recapitalization in respect of the Company Capital Stock, or any employmentdirect or indirect redemption, deferred compensation, consulting, severance, termination purchase or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices other acquisition by the Company affecting its assets, liabilities or business, including, without limitation, of any reserving, renewal or residual method, or estimate shares of practice or policy, Company Capital Stock; (viiv) any tax election material contract entered into by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesSubsidiary, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practiceand as provided to Parent, or any amendment or termination of, or default under, any material contract to which the Company or any Company Subsidiary is a party or by which it is bound; (viiiv) any transaction amendment or commitment, change to the Certificate of Incorporation or series Bylaws of related transactions the Company or commitments, to acquire real estate for VOI development in excess the constituent documents of $1,000,000 any Company Subsidiary; (ixvi) any material labor trouble increase in or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any modification of the foregoing.compensation or
Appears in 1 contract
Samples: Merger Agreement (Tickets Com Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule 4.7, since January 1December 31, 20002002, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has whether or not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, there has not been, occurred or arisen:
(Ba) any granting sale or transfer by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Subsidiary of any increase in severance or termination payof their respective assets having a value greater than $50,000, or any assignment of the Company’s or any Subsidiary’s Intellectual Property owned by the Company and/or any Subsidiary as of December 31, 2002;
(Cb) any entry grant or agreement to grant by the Company or any Subsidiary of its subsidiaries intoany increase in any rate or rates of salaries or compensation or in any bonus, insurance, pension or other employee benefit plan, payment or arrangement to any of the Company’s or any amendment of, any employment, deferred Subsidiary’s employees or agents other than ordinary course year-end increases included in the “current compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, ” set forth on Schedule 4.16;
(v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vic) any tax election adoption by the Company or its subsidiaries or any settlement or compromise Subsidiary of any income tax liability new or amended Company Benefit Plan (as defined in Section 4.13) or provision by the Company or its subsidiariesany Subsidiary of any increases in any benefits under such Company Benefit Plans except in accordance with the terms of such plans or as required under applicable Law;
(d) the receipt by either Seller, except as would the Company or any Subsidiary of any written notice of any Action or Order commenced against the business or any of the properties of the Company or any Subsidiary;
(e) any declaration, set aside or payment by the Company of any dividends or any non-cash payment or distribution in respect of any Membership Interests, or issuance, sale or other disposition of any Membership Interests or evidence of indebtedness or other securities, or grant of any options, warrants, calls, rights or commitments or any other agreements of any character obligating it to issue any Membership Interests or any evidence of indebtedness or other securities;
(f) any change in or event affecting the Company or any Subsidiary, including but not be required limited to be disclosed any change in the condition (financial or otherwise), results of operations, or properties of the Company SEC Documentsor any Subsidiary, that has had or may reasonably be expected to have a Material Adverse Effect on the Company or any Subsidiary;
(viig) entrance by the Company or any material insurance transaction other than Subsidiary into any employment or severance agreement;
(h) entrance into, or agreement by the Company or any Subsidiary to enter into, any agreement or understanding, whether oral or written, calling for payments by the Company or any Subsidiary in excess of $50,000 and not in the ordinary course of business consistent with past practice, the Company’s business;
(viiii) any transaction agreement to cancel or commitment, or series waiver of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble claims or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory rights by the Company or any Subsidiary;
(j) (i) incurring of indebtedness by the Company or any Subsidiary for borrowed money that will be outstanding as of the Effective Date or guaranteeing of any indebtedness of another Person or issuance or sale of any debt securities or warrants or other rights to acquire debt securities; (ii) any loans, advances (other than pursuant to content agreements and distribution agreements in the ordinary course of the Company’s business) or capital contributions by the Company or any Subsidiary to, or investments in, any Person;
(k) any strike or other labor dispute with respect to the FairShare Program Company or any Subsidiary;
(xil) any agreement casualty, loss, damage or commitment destruction (contingent whether or otherwisenot covered by insurance) of any material property of the Company or any Subsidiary; or
(m) any agreement, whether oral or written, to do any of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Roxio Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as permitted or contemplated by this Agreement, since the Interim Balance Sheet Date, the Company has not (a) suffered any material damage, destruction or casualty loss to its physical properties, or (b) suffered any events, developments, occurrences or changes that, individually or in connection with the aggregate, could reasonably be expected to have a Material Adverse Effect. Further, except as set forth on Section 2.9 of the Seller Disclosure Schedule and as otherwise contemplated by this Agreement or the transactions other agreements, instruments and documents contemplated hereby, since January 1, 2000from the Interim Balance Sheet Date through the date of this Agreement, the Company and has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, Ordinary Course in all material respects and there has not been any:
(i) material non-compliance with any applicable Law by the occurrence Company;
(ii) actions taken or omissions of an event action that could reasonably be expected to result in materially and adversely affected the Company’s goodwill or relationship with any material adverse effect on employee, customer, supplier or other Person having business dealings with the Company, except for an effect due in the Ordinary Course;
(iii) losses of or reductions to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment services of any dividend executive officer or key employee of the Company;
(iv) amendments to the Governing Documents of the Company;
(v) mergers or consolidations with, or agreements to merge or consolidate with, or purchase substantially all of the assets of, or other distribution acquisitions of any business or any corporation, partnership, association or other business organization or division thereof, involving the Company;
(whether vi) acceleration of shipments or invoicing over that typically made in cashthe Ordinary Course;
(vii) repurchases, stock redemptions or propertyother acquisitions of any of the Equity Securities or other equity ownership interests of the Company;
(viii) issuances, sales, pledges or dispositions of, or impositions of any Encumbrance on, any of the Equity Securities or other equity ownership interests of the Company, or any options, warrants or other similar rights, agreements or commitments of any kind to purchase any such securities convertible into or exchangeable for any such Equity Securities or other equity ownership interests of the Company;
(ix) declarations or payments of any dividends or distributions or other capital returns with respect to any Equity Securities or other equity ownership interests of the Company's capital stock, (iii) any split, combination whether payable in additional Equity Securities or reclassification of any other equity ownership interests of the Company's capital stock , cash, property or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stockotherwise, except for issuances distributions in the Ordinary Course;
(x) incurrences, assumptions, guarantees (including any “keepwell” or any similar arrangement) or prepayments of Company Common Stock upon any Indebtedness by the exercise of Company Stock Options or Company WarrantsCompany, in each case awarded prior amendments to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries terms relating to any current or former director, executive officer or other Key Employee Indebtedness of the Company or its subsidiaries issuances or sales of any increase debt securities by the Company;
(xi) purchases of any material products or assets that have a value of $20,000 individually or $50,000 in compensation, bonus or other benefitsthe aggregate, except for increases the purchase of inventory in the ordinary course Ordinary Course;
(xii) sales, transfers, assignments, licensing, conveyances, mortgaging, pledging, or dispositions of, or the incurrence of any Encumbrance (other than any Permitted Encumbrance) on, any properties or assets (whether tangible or intangible) of the Company that have a value of $20,000 individually or $50,000 in the aggregate, except for the sale of inventory in the Ordinary Course;
(xiii) transactions between the Company, on the one hand, and any other Seller Party or Affiliate of a Seller Party, on the other hand, except for dividends to Seller as the Company’s sole shareholder;
(xiv) capital expenditures or equipment and facility maintenance expenses, or acceleration or deference of any capital expenditures or equipment and facility maintenance expenses, other than in accordance with the capital expenditures budget which has been made available to Buyer and was prepared in the Ordinary Course, and any such other expenditures as were necessary in the Company’s reasonable judgment to prevent the destruction, removal, wasting, deterioration or impairment of the Company’s assets;
(xv) deferrals of capital expenditures called for by the Company’s capital expenditures budget and or needed for its business;
(xvi) agreements regarding or conclusions of any corrective actions, plans or Orders applicable to the Company;
(Bxvii) any granting settlements, compromises or waivers by the Company or of any of its subsidiaries material rights relating to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or Proceedings;
(Cxviii) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory changes by the Company to any financial, cost or Tax accounting methods, practices, policies or principles or elections, including any inventory valuation methodologies and capitalization of research and development and product development methodologies, other than any such changes as may be required under GAAP;
(xix) cancellations or terminations of any insurance policies of the FairShare Program Company or lapses in the coverage thereof, unless simultaneously with such cancellation, termination or lapse, replacement policies providing, to the extent reasonably available, coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums were in full force and effect;
(xx) failure by the Company to pay bonuses, commissions or other compensation due to employees when owed or payable;
(xxi) any (A) adoption of, amendment to (other than any amendment necessary to comply with any applicable Law) or entry into any Benefit Plan, or (xiB) changes to actuarial or other assumptions used to calculate funding obligations with respect to any agreement Benefit Plan or commitment other arrangement, or changes to the manner in which contributions to such Benefit Plans or other arrangements are made or the basis on which contributions are determined, except as may be required by GAAP;
(contingent xxii) forgiveness by the Company of any loans to any officer, director, manager, employee or otherwiseindependent contractor of the Company; or
(xxiii) agreements or commitments by the Company to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Superior Uniform Group Inc)
Absence of Certain Changes or Events. Except for liabilities incurred (a) Since December 31, 2005, there has been no change or development or combination of changes or developments which, individually or in connection with this Agreement the aggregate, has had or is reasonably likely to have a Material Adverse Effect on the transactions contemplated herebyCompany or any of its Subsidiaries.
(b) Since December 31, since January 12005, 2000, each of the Company and its subsidiaries have Subsidiaries has conducted their respective businesses its business only in the ordinary course, course of business consistent with past practice and there has not been any:
(i) the occurrence of an event that could reasonably be expected to result change in any material adverse effect on the Company, except for an effect due to changes affecting the economy its authorized or financial markets generally other than such changes which affect issued capital stock; grant by the Company in a manner which is not proportionate with or any of its Subsidiaries of any stock option or right to purchase shares of its capital stock; issuance of any security convertible into shares of any of its common stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the effect Company or any of such changes on similarly situated companies, (ii) its Subsidiaries of any declaration, setting aside shares of its capital stock; or declaration or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities payment in respect of, in lieu of or in substitution for shares of the Company's its capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, as set forth in each case awarded prior Schedule 4.8(b)(i);
(ii) amendment to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by Articles of Incorporation or Bylaws of the Company or any of its subsidiaries Subsidiaries;
(iii) increase in the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any current or former directoremployee, executive shareholder, officer or other Key Employee director of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries Subsidiaries from the amount thereof in effect as of December 31, 2005 (which amounts have been previously disclosed to any such current or former directorBuyer), executive officer or Key Employee grant of any increase in severance or termination pay, entry into any contract to make or grant any severance or termination pay, or payment of bonus (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than for salary increases and bonus payments made in the ordinary course of business consistent with past practice);
(iv) adoption of, or increase in the payments to or benefits under, any profit-sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any employees of the Company or any of its Subsidiaries;
(v) damage to or destruction or loss of any asset or property of the Company or any of its Subsidiaries, whether or not covered by insurance, materially and adversely affecting the business, results of operations or financial condition of the Company or any of its Subsidiaries;
(vi) entry into, termination of, or receipt of notice of termination of (A) any license, distributorship, dealer, sales representative, joint venture, credit (except in the ordinary course of the Bank’s business), or similar agreement, or (B) any contract or transaction involving a total remaining commitment by or to the Company or any of its Subsidiaries of at least $50,000;
(vii) sale (other than sales of inventory or other real estate owned in the ordinary course of business consistent with past practice), lease, or other disposition of any asset or property of the Company or any of its Subsidiaries or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of the Company or any of its Subsidiaries;
(viii) cancellation or waiver of any transaction claims or commitment, rights with a value to the Company or series any of related transactions or commitments, to acquire real estate for VOI development its Subsidiaries in excess of $1,000,000 50,000;
(ix) any material labor trouble or claim of wrongful discharge strike, work stoppage, slow-down, union organizing activities or other unlawful labor practice union-sponsored activities affecting or action, targeting the Company or any of its Subsidiaries;
(x) entry into a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization affecting the Company or any improper subjection of VOI inventory its Subsidiaries; or
(xi) agreement, whether oral or written, by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) of its Subsidiaries to do or assist with any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Ucbh Holdings Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with the Company SEC Reports filed prior to the date of this Agreement or the transactions Exchange Agreement, and except as contemplated herebyby this Exchange Agreement, since January 1April 2016, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's ’s capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company into any currently effective employment, severance, or (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of the Company, or (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory revaluation by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do of any of their respective assets, including, without limitation, writing down the foregoingvalue of capitalized inventory or writing off notes or accounts receivable.
Appears in 1 contract
Samples: Securities Exchange Agreement (Bingham Canyon Corp)
Absence of Certain Changes or Events. Except (a) as set forth in Section 2.6(e) of the Company Schedule, (b) for liabilities incurred in connection with this Agreement or the transactions contemplated herebyby any of the Transaction Documents (including as contemplated by Section 4.6 of this Agreement), and/or (c) as consented to in writing by LTFS, since January 1December 31, 20002006, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) as of the occurrence date of an event that could reasonably be expected to result in this Agreement, any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesCompanies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Companies’ stock, or any purchase, redemption or other acquisition by any Company of any of such Company's ’s capital stockstock or any other securities of such Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's Companies’ capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the any Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company cash or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than fringe benefit compensation in the ordinary course of business consistent with past practice, or any payment by such Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by any Company of any increase in severance or termination pay or any entry by such Company 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 such Company of the nature contemplated hereby, (v) entry by any Company into any licensing or other agreement with regard to the acquisition or disposition of any Intangible Rights other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by such Company with respect to any Governmental Entity, (vi) any material change by any Company in its accounting methods, principles or practices, (vii) any change in the auditors of any Company, (viii) any transaction or commitmentissuance of capital stock of any Company, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble revaluation by any Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or claim writing off notes or accounts receivable or any sale of wrongful discharge or assets of such Company other unlawful labor practice or actionthan in the ordinary course of business, (x) any improper subjection acceleration of VOI inventory by the Company to recognition of revenues or deferment of the FairShare Program recognition of expenses other than in accordance with U.S. GAAP and consistent with past practices, or (xi) any agreement agreement, whether written or commitment (contingent or otherwise) oral, to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement Schedule 2.9 hereto or in the transactions Unaudited Financial Statements and except as contemplated herebyherein, since January 1March 31, 20002007, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s stock, or any purchase, redemption or other acquisition by the Company of any of the Company’s capital stockstock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's ’s capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any material increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, (viii) or any transaction or commitmentpayment by the Company of any material bonus, except for bonuses made in the ordinary course of business consistent with past practice, or series any granting by the Company of related transactions any material increase in severance or commitmentstermination pay or any entry by the Company into any currently effective employment, severance, termination or indemnification agreement or any agreement, in each case the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby, (v) entry by the Company into any licensing or other agreement with regard to acquire real estate for VOI development the acquisition or disposition of any Intellectual Property (as defined in excess Section 2.18 hereof) other than (A) licenses in the ordinary course of $1,000,000 business, (ixB) shrink-wrap, click-wrap or similar widely-available commercial end-user licenses, (C) implied licenses which may be contained in non-disclosure agreements entered into in the ordinary course of business and (D) licenses granted to the Company pursuant to employee proprietary information agreements (or similar agreements with current or former employees or consultants), or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory change by the Company in its accounting methods, principles or practices other than in connection with the conversion of the Audited Financial Statements to US GAAP and the FairShare Program or audit thereof, (xivii) any agreement or commitment (contingent or otherwise) to do any change in the auditors of the foregoing.Company,
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ascend Acquisition Corp.)
Absence of Certain Changes or Events. Except for liabilities incurred as and to the extent disclosed in connection with the Company SEC Documents filed prior to the date of this Agreement, as disclosed in Section 3.07 of the Company Disclosure Letter or otherwise permitted pursuant to this Agreement or to occur after the transactions contemplated herebydate hereof, since January 1December 31, 20002003, the Company and its subsidiaries the Company Subsidiaries have conducted their respective businesses business only in the ordinary course, course and there has not been been:
(ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Companyexcept as permitted by Section 6.11, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any Company Common Stock or other equity securities of, or other ownership interests in, any Company Subsidiary;
(b) any amendment of any term of any outstanding debt or equity security of the Company's capital stockCompany or any Company Subsidiary;
(c) any repurchase, redemption or other acquisition by the Company or any Company Subsidiary of any outstanding Company Common Stock or other equity securities of, or other ownership interests in, the Company or any Company Subsidiary;
(iiid) any split, combination or reclassification of any Company Common Stock or the stock of any Company Subsidiary (other than the stock of Subsidiaries wholly-owned, directly or indirectly, by the Company's capital stock ), or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for for, or giving the right to acquire by exchange or exercise, shares of stock or any ownership interest in, the Company's capital stock, Company or any Company Subsidiary;
(e) except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsextent contemplated by the Corporate Budget for such period, (iv) prior to the date hereof (A) any granting provision of funds to, or investment by the Company or any Company Subsidiary (in the form of its subsidiaries to a loan, capital contribution or otherwise) in any current Company Subsidiary other than (i) in Company Subsidiaries wholly owned, directly or former directorindirectly, executive officer or other Key Employee of by the Company or its subsidiaries (ii) to the extent expressly required by the organizational document of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, such Company Subsidiary;
(Bf) any granting material change in any method of accounting or accounting practice or any material change in any tax method or election by the Company or any Company Subsidiary;
(g) any amendment of its subsidiaries to any such current employment, consulting, severance, incentive stock, stock option, deferred compensation, bonus, retirement, retention or former directorany other agreement between (i) the Company or any Company Subsidiary, executive on the one hand and (ii) any officer or Key Employee director of the Company or any increase in severance or termination payCompany Subsidiary, or on the other hand; or
(Ch) any entry acquisition by the Company or any Company Subsidiary of its subsidiaries into(whether through merger or consolidation with, the purchase of a substantial equity interest in, the purchase of a substantial portion of the assets of, or otherwise) any amendment ofbusiness or any corporation, partnership, association or other business organization or a division thereof or any employment, deferred compensation, consulting, severance, termination or indemnification agreement with significant assets;
(i) any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change the lines of business in accounting methods (or underlying assumptions), principles or practices by which the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal the Company Subsidiaries participates or residual method, or estimate of practice or policy, is engaged;
(vij) any tax election capital expenditures by the Company or its subsidiaries any Company Subsidiary in excess of the amounts contemplated by the Corporate Budget for such period; or
(k) any incurrence of indebtedness for borrowed money or any settlement or compromise of any income tax liability guarantee for such indebtedness, in each case by the Company or its subsidiariesany Company Subsidiary, except as would not be required other than to be disclosed in meet (i) the current cash needs of the Company SEC Documentsand Company Subsidiaries not exceeding the amount contemplated by the Company's Corporate Budget for such period, a copy of which has been previously provided to Parent, and (viiii) for projects currently under construction in amounts previously disclosed to Parent;
(l) any material insurance transaction other than in change, event, effect, damage, destruction or loss relating to the ordinary course business or operations of business consistent with past practicethe Company or any Company Subsidiary that has had, or would reasonably be expected to have, a Company Material Adverse Effect; or
(viiim) any transaction Contract, commitment or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) arrangement to do or engage in any action the consummation of which would effect any of the foregoingevents listed in this Section 3.07.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred Since December 31, 2005, and except as disclosed in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000Schedule 3.7, the Company and its subsidiaries have conducted their respective businesses only Business has been operated in the ordinary course, course and there has not been any:
(ia) sale, assignment or transfer, other than in the occurrence ordinary course of an event business and consistent with past practices, of any assets of any Company;
(b) acquisition by merger, consolidation with, purchase of substantially all of the assets or capital stock of, or any other acquisition of any material assets or business of, any corporation, partnership, association or other business organization or division thereof;
(c) change in accounting methods or practices by any Company;
(d) termination of, or any amendment or modification to, any Material Contract or Permit, in any case that could reasonably be expected to result is adverse in any material adverse effect on the respect to any Company, or entry into any material borrowing, capital contribution or capital financing transaction;
(e) increase in salary, bonuses or other compensation payable or to become payable to any officer or employee of any Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, consistent with past practices, and none of the Companies has (Bi) entered into any granting by the Company Benefit Plan or Benefit Agreement, employment, severance, or other agreements relating to compensation or fringe benefits, (ii) adopted or changed any of its subsidiaries existing Benefit Plan or Benefit Arrangement or (iii) advanced or loaned any money to any such current or former director, executive officer or Key Employee of any increase in severance employee;
(f) strike, walkout, labor trouble or termination pay, or (C) any entry by the Company or any of its subsidiaries intothreat thereof, or any amendment other new or continued event, development or condition of any character with respect to the employees engaged in the Business which has affected or could reasonably be expected to affect materially and adversely the Business;
(g) cancellation or waiver of any right material to the operation of the Business or any cancellation or waiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any officer, manager or employee of any Company;
(h) payment, discharge or satisfaction of any liability or obligation (whether accrued, absolute, contingent or otherwise), other than the scheduled payment, discharge or satisfaction, in the ordinary course of business, of liabilities or obligations shown or reflected on the Financial Statements or incurred in the ordinary course of business since December 31, 2005;
(i) deferral of any capital expenditure or capital improvements that is reasonably required for the operation of the Business;
(j) adverse change, or, to the best of Sellers’ knowledge, threat of any adverse change, in any Company’s relations with, or any loss, or, to the best of Sellers’ knowledge, threat of loss of, any employmentCompany’s landlords, deferred compensationsuppliers, consultingclients or customers which, severanceindividually or in the aggregate, termination has been or indemnification agreement with could reasonably be expected to be materially adverse to the Companies;
(k) write-offs as uncollectible of any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, notes owed to any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise accounts receivable of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in write-downs of the value of any asset or inventory by any Company SEC Documents, (vii) any material insurance transaction other than in immaterial amounts or in the ordinary course of business consistent with past practicepractice and at a rate no greater than the rate applicable during the twelve (12) months ended on December 31, 2005;
(viiil) creation, incurrence, assumption or guarantee by any Company of any material obligations or liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due), except in the ordinary course of business, or any creation, incurrence, assumption or guarantee by any Company of any indebtedness for borrowed money;
(m) any transaction damage, destruction or commitmentloss that has affected, or series of related transactions could reasonably be expected to affect, materially and adversely the Facility or commitments, to acquire real estate for VOI development in excess of $1,000,000 the Business;
(ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xin) any agreement by any Company or commitment (contingent or otherwise) any Seller to do any of the foregoing; or
(o) event or condition that has had, or could reasonably be expected to have, material adverse effect on (a) the business, assets, operations, financial condition or liabilities of the Companies or the Business, taken as a whole; (b) the ability of any Seller to perform any of his, her or its material obligations under any of the Transaction Documents; (c) the rights and remedies of Buyer under this Agreement, the other Transaction Documents or any related document, instrument or agreement; or (d) the validity of any of the Transaction Documents.
Appears in 1 contract
Samples: Business Purchase Agreement (Macquarie Infrastructure CO LLC)
Absence of Certain Changes or Events. Except for liabilities incurred as may be disclosed in connection with this Agreement the Reports or as otherwise disclosed in Section 3.1(f) of the transactions contemplated herebyDisclosure Schedule, since January 1June 28, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and 1997 there has not been (ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companybusiness, except for an effect due to changes affecting the economy assets, financial condition or financial markets generally other than such changes which affect operations of the Company in and the Subsidiaries taken as a manner which is not proportionate with whole; (b) any damage, destruction or loss, whether covered by insurance or not, having a material adverse effect upon the effect properties or business of such changes on similarly situated companies, the Company and the Subsidiaries taken as a whole; (iic) any declaration, setting aside or payment of any dividend, except for the Company's regular dividend to stockholders, or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) stock of the Company or any split, combination redemption or reclassification other acquisition by the Company of any of its capital stock; (d) any issuance by the Company's capital stock , or commitment of the Company to issue, any issuance shares of its Common Stock or the authorization of any issuance of any other securities in respect of, in lieu of convertible into or in substitution exchangeable for shares of the Company's capital stock, except for issuances of Company its Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Stock; (iv) prior to the date hereof (Ae) any granting increase in the rate or terms of compensation payable or to become payable by the Company or any Subsidiary to its directors, officers of key employees, except increases occurring in the ordinary course of business in accordance with its subsidiaries to customary past practices; (f) any current increase in the rate or former directorterms of any bonus, executive officer insurance, pension or other Key Employee employee benefit plan, payment or arrangement made to, for or with any directors, officers or key employees, except increases occurring in the ordinary course of business in accordance with its customary past practices; (g) any change by the Company in accounting methods, principles or practices except as required by generally accepted accounting principles; (h) an entry into any agreement, commitment or transaction by the Company or any Subsidiary which is material to the Company and its subsidiaries Subsidiaries taken as a whole, except agreements, commitments or transactions in the ordinary course of business; (i) any material breach by the Company of any increase in compensationof its material obligations under its franchise agreements with Wendy's International, bonus or Inc. ("Wendy's") or, to the Company's knowledge, by Wendy's of its material obligations thereunder; (j) any incurrence, other benefits, except for increases than in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, material indebtedness for money borrowed; or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xik) any agreement or commitment (contingent commitment, whether in writing or otherwise) , to do take any of action described in this subsection 3.1(f). Since June 28, 1997, the foregoingCompany and the Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course, consistent with past custom and practice, except as contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Davco Restaurants Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement the Company SEC Reports or in the transactions contemplated herebyCompany Disclosure Schedule, since January 1December 31, 20001999, the Company and XxxxXxxxxx.xxx has each conducted its subsidiaries have conducted their respective businesses business only in the ordinary course, and there has not been been:
(ia) any change that would have a Company Material Adverse Effect, or any change in the occurrence assets, available cash, liabilities, financial condition or operating results of an event the Company and XxxxXxxxxx.xxx on a consolidated basis from that could reasonably be expected to result reflected in any material adverse effect on the CompanyFinancial Statements, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse and no incurrence of any indebtedness for an effect due to changes affecting borrowed money, leases, guarantees, assumptions of the economy indebtedness or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect letters of such changes on similarly situated companies, comfort or similar instruments;
(iib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's or XxxxXxxxxx.xxx's capital stock, or, any redemption, purchase or other acquisition of any of its capital stock,
(iiic) any split, combination or reclassification of any of the Company's capital stock or, except with respect to Company Stock Options granted prior to the date of this Agreement as described in the Company SEC Reports or identified in Section 4.2, any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's or XxxxXxxxxx.xxx's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ,
(iv) prior to the date hereof (Ad) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries employee of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of businessbusiness consistent with prior practice or as required under employment agreements in effect as of December 31, 1999,
(Be) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee employee of any increase in severance or termination paypay or other special, or (C) extraordinary compensation or benefits, except as required under employment, severance or termination agreements or plans in effect as of December 31, 1999; or any entry by the Company or any of its subsidiaries intointo any employment, severance or termination agreement with any employee, or any amendment of, increase in benefits available under or establishment of any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, Company Benefit Plan (vas defined below) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, or the adoption of any new Company Benefit Plan (viiias defined in Section 4.16);
(f) any transaction damage, destruction or commitmentloss, whether or not covered by insurance, materially and adversely affecting the Business, properties or financial condition of the Company or XxxxXxxxxx.xxx, or series any changes in insurance coverage reducing coverage or materially increasing the cost of related transactions coverage or commitmentsany notice of cancellation or nonrenewal of any insurance policy;
(g) any sale, to acquire real estate for VOI development assignment or transfer of any Technology except in excess connection with the sale of $1,000,000 Products in the ordinary course of business;
(ixh) any material labor trouble change in accounting methods, principles or claim of wrongful discharge or other unlawful labor practice or actionpractices by the Company, except insofar as may have been required by a change in GAAP;
(xi) any improper subjection of VOI inventory waiver or compromise by the Company or XxxxXxxxxx.xxx of any material right with respect to the FairShare Program Technology or Material Contracts or any material amendment, waiver, cancellation or other change in any Material Contract;
(xij) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of or supplier to the Company or XxxxXxxxxx.xxx;
(k) any agreement mortgage, pledge, transfer of a security interest in, or lien, created by the Company or XxxxXxxxxx.xxx, with respect to any of its material properties or assets, except liens for taxes not yet due or payable or which do not materially impair the value of such properties or assets;
(l) any loans or guarantees made by the Company or XxxxXxxxxx.xxx 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 ordinary course of its business;
(m) any arrangement or commitment (contingent by the Company or otherwise) XxxxXxxxxx.xxx to do any of the foregoingthings described in this Section 4.7.
Appears in 1 contract
Samples: Merger Agreement (Lumisys Inc \De\)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement SECTION 2.9 of the Company Disclosure Schedule or in the Audited Financial Statements or the transactions contemplated herebyUnaudited Financial Statements when delivered, or as otherwise provided in this Agreement, since January 1, 20002006 to the date of this Agreement, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, ; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company Capital Stock or any options, warrants, calls or rights to acquire any such shares or other securities; (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Capital Stock; (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by Company 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 the Company of the nature contemplated by this Agreement; (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity; (vi) any material change by the Company in its accounting methods, principles or practices; (vii) any change in the auditors of the Company; (viii) any transaction or commitmentissuance of capital stock of the Company, or series of related transactions or commitments, other than pursuant to acquire real estate for VOI development the Company Stock Option Plans in excess of $1,000,000 the ordinary course; (ix) any revaluation by the Company of any of its material labor trouble assets, including, without limitation, writing down the value of capitalized inventory or claim writing off notes or accounts receivable or any sale of wrongful discharge assets of the Company other than in the ordinary course of business; or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Echo Healthcare Acquisition Corp.)
Absence of Certain Changes or Events. (a) Except for liabilities incurred as disclosed in connection with the Current SEC Reports filed prior to the date of this Agreement or Schedule 3.6 of the transactions Company Disclosure Schedule, or except as contemplated herebyby this Agreement, since January 1May 31, 20001998, each of the Company and its subsidiaries Subsidiaries have conducted their respective businesses business only in the ordinary coursecourse of business consistent with past practice, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any Capital Stock of the Company's capital stock, ; (iiiii) any split, combination combinations, reclassification or reclassification amendment of any term of any outstanding Capital Stock or other security of the Company's capital stock Company or any of its Subsidiaries or (other than issuance of Common Stock upon the exercise of any Company Options) any issuance or the authorization of any the issuance of any securities of the Company or any of its Subsidiaries, other than in connection with the transactions contemplated hereby; (iii) any repurchase, redemption or other acquisition by the Company or any Subsidiary of the Company of any outstanding Capital Stock or other securities in respect of, in lieu of the Company or in substitution for shares any Subsidiary of the Company's capital stock, except for issuances of Company Common as contemplated by the Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Plans; (iv) prior to the date hereof (A) any granting grant by the Company or any of its subsidiaries Subsidiaries to any current or former director, executive officer or other Key Employee of the Company or any of its subsidiaries Subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of businessbusiness consistent with past practice or as required under employment or other agreements or benefit arrangements in effect as of May 31, 1998, or (B) any granting grant by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, except as was required or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, provided for under any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current other agreements or former directorbenefit arrangements in effect as of May 31, executive officer or Key Employee, 1998; (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company affecting or any of its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, Subsidiaries; and (vi) any tax election by material casualties affecting the Company or and its subsidiaries Subsidiaries, taken as a whole, or any settlement material loss, damage or compromise destruction to any of any income tax liability their properties or assets, whether covered by the Company insurance or its subsidiaries, except not.
(b) Except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than Company's consolidated financial statements included in the ordinary course of business consistent with past practiceCompany 1998 Form 10-K, (viii) any transaction or commitmentand the notes thereto, or series of related transactions as disclosed in the other Current SEC Reports, since May 31, 1998, there has not been any event, circumstance or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, fact that (x) any improper subjection has had or could reasonably be expected to have a Material Adverse Effect, (y) has impaired or could reasonably be expected to impair the ability of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do perform its obligations under any of the foregoingTransaction Documents in any material respect, or (z) could reasonably be expected to delay in any material respect or prevent the consummation of any of the transactions contemplated by any of the Transaction Documents.
Appears in 1 contract
Samples: Purchase Agreement (SCF Iv Lp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as contemplated by this Agreement or otherwise disclosed in the transactions contemplated herebyCompany SEC Reports filed with the Commission prior to the date hereof or as set forth on Section 4.6 of the Company Disclosure Schedule, since January 1March 31, 20002000 through the date of this Agreement, (i) each of the Company and its subsidiaries have Subsidiaries has conducted their respective businesses only its business in the ordinary course, course consistent with recent past practice; and (ii) there has not been (i) occurred or arisen any event, condition or occurrence affecting the occurrence of an event Company or its Subsidiaries that could has had, or would reasonably be expected to result in any material adverse effect have, a Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) nor has there been:
4.6.1 any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of the Company's Company or any repurchase for value by the Company of any of its capital stock, (iii) ;
4.6.2 any split, combination or reclassification of any capital stock of the Company's capital stock Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(iv) prior to the date hereof (A1) any granting by the Company or any of its subsidiaries Subsidiaries to any current director or former director, executive officer or other Key Employee of the Company or its subsidiaries any Subsidiary of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of businessbusiness consistent with prior practice, (B2) any granting by the Company or any of its subsidiaries Subsidiaries to any such current director or former director, executive officer or Key Employee of any increase in severance or termination pay, except as was required under any employment, consulting, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Reports, or (C3) any entry by the Company or any of its subsidiaries Subsidiaries into, or any amendment of, any employment, consulting, deferred compensation, consultingindemnification, severance, severance or termination or indemnification agreement with any such current director or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, officer;
4.6.4 any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company or any of its Subsidiaries affecting its the consolidated assets, liabilities or businessresults of operations of the Company, including, without limitation, except insofar as may have been required by a change in GAAP;
4.6.5 any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election material elections with respect to Taxes by the Company or any of its subsidiaries Subsidiaries or any settlement or compromise of any income tax liability by the Company or any of its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, Subsidiaries of any material tax liability or refund;
4.6.6 (vii1) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory acquisition by the Company or any of its Subsidiaries by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other method, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (2) any acquisition by the Company or any of its Subsidiaries of any assets (other than inventory) that are material, individually or in the aggregate, to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.Company and its Subsidiaries;
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with Since December 31, 2009 through the date of this Agreement or the transactions contemplated herebyAgreement, since January 1, 2000, each of the Company and its subsidiaries have Subsidiaries has conducted their respective its businesses only in the ordinary coursecourse and in a manner consistent with past practice and there has not been a Company Material Adverse Effect. Since December 31, and 2009, there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Companydetermination with respect to, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of of, any dividend or other distribution (whether in cash, stock or property) with respect to shares of Company Stock or shares of a Company Subsidiary's Common Stock, or of or any redemption, purchase or other acquisition of any Company Stock, or any liability incurred for dividends accrued and unpaid by the Company's capital stock, (iiiii) any split, combination or reclassification of any of the Company's capital stock Company Stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsStock, (iviii) prior to the date hereof (A) any granting by the Company or any of its subsidiaries Subsidiaries to any current or former director, executive officer or other Key Employee director of the Company or any of its subsidiaries Subsidiaries of any increase in cash compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or Key Employee director of any increase in severance or termination pay, or (C) any granting by the Company or any of its Subsidiaries to any such executive officer, director or other key employees of any loans or any increases to outstanding loans, (D) except employment arrangements in the ordinary course of business consistent with past practice with employees other than any executive officer of the Company, any entry by the Company or any of its subsidiaries intoSubsidiaries into any employment, severance or termination agreement with any amendment ofsuch employee or executive officer or director or (E) except in the ordinary course of business, any employmentincrease in or establishment of any bonus, insurance, deferred compensation, consultingpension, severanceretirement, termination profit-sharing or indemnification other employee benefit plan or agreement or arrangement, (iv) any material damage, destruction or loss, whether or not covered by insurance with any such current respect to the properties of the Company or former director, executive officer or Key Employeeits Subsidiaries, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by payment to an Affiliate of the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (vi) any Lien placed upon any of the material properties or assets of the Company or any of its Subsidiaries other than licenses with regard to the Company's material Intellectual Property or rights thereto in the ordinary course of business consistent with past practice, (vii) any material change in accounting methods, principles or practices by the Company or (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge licensing or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company agreement with regard to the FairShare Program acquisition or (xi) any agreement or commitment (contingent or otherwise) to do disposition of any of the foregoingCompany's material Intellectual Property or rights thereto other than licenses or other agreements in the ordinary course of business consistent with past practice.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred Other than as disclosed in connection with Schedule 3.9 of the Company Disclosure Letter, and except as contemplated by this Agreement or the transactions contemplated herebyAgreement, since January 1December 31, 20002020 through the date of this Agreement, except as required to respond to Pandemic Measures, each of the Company and Group Companies has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, course consistent with past practice and there has not been been: (ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the CompanyCompany Material Adverse Effect; (b) any purchase, except for an effect due to changes affecting the economy redemption or financial markets generally other than such changes which affect acquisition by the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stockshares of Company Common Stock, Company Preferred Stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such Company Common Stock, Company Preferred Stock or other securities, other than pursuant to the terms of a Company Option, Company Restricted Stock Award or Company RSU; (iiic) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon or Company Preferred Stock; (d) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or Applicable Legal Requirements; (e) any change in the auditors of the Company; (f) any issuance of shares of Company Common Stock or Company Preferred Stock, other than in connection with the exercise of a Company Stock Options Option or settlement of a Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, RSU; (iv) prior to the date hereof (Ag) any granting revaluation by the Company or of any of its subsidiaries to assets, including any current or former director, executive officer or other Key Employee sale of assets of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases than with respect to sales in the ordinary course of business; (h) incurred, created or assumed any Indebtedness other than as expressly permitted hereunder or (Bi) any granting action taken or agreed upon by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingGroup Companies that would be prohibited by Section 5.1 (other than clauses (a), (c), (d), (i) and, to the extent related to the foregoing clauses, (q) thereof) if such action were taken on or after the date hereof without the consent of Parent.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred From December 31, 2014 through the date of this Agreement, each of the Company and each of the Company Subsidiaries has conducted its business in the ordinary course of business consistent with past practice except in connection with this Agreement or and the transactions contemplated hereby, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there Transactions. There has not been since December 31, 2014 (ia) the any event, change, occurrence of an event that could or effect which has had or would reasonably be expected to result in any material adverse effect on the Companyhave, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect; (iib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock stock, property or property) with otherwise in respect to of the Company’s or any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's Company Subsidiaries’ capital stock, except for issuances any dividend or distribution by a Company Subsidiary to the Company or another Company Subsidiary; (c) any redemption, repurchase or other acquisition of any shares of capital stock of the Company Common Stock upon or any of the exercise Company Subsidiaries (other than in connection with the settlement of Company Stock Options or Company Warrants, RSUs or in each case awarded prior order to pay Taxes in connection with the vesting or exercise of any grants (including Company Stock Options and Company RSUs) pursuant to the date hereof in accordance with their present terms, terms of a Company Stock Plan); (iv) prior to the date hereof (Ad) any granting change by the Company or any of in its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would that was not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than made in the ordinary course of business consistent of the Company or otherwise not disclosed in an SEC Report; (e) with past practicerespect to the Company or any Company Subsidiary, (viii) any transaction election, change or commitmentrevocation of any material election relating to Taxes, any release, assignment, settlement or compromise of any material Tax liability or surrender of any material refund, or series any material change to any of related transactions methods of reporting income or commitments, to acquire real estate deductions for VOI development in excess of $1,000,000 Tax purposes; (ixf) any material labor trouble increase not in the ordinary course of business in the compensation or claim benefits payable or to become payable to any officer or employee of wrongful discharge the Company or any Company Subsidiary; (g) any adoption of, resolution to approve or petition or similar proceeding or Order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other unlawful labor practice or action, (x) any improper subjection reorganization of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingCompany Subsidiaries; or (h) any receiver, trustee, administrator or other similar person appointed in relation to the affairs of the Company or its property or any part thereof.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as contemplated by this Agreement or the transactions contemplated herebyas set forth on Schedule 2.9, since January 1the date of the most recent Financial Statement to the date of this Agreement, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's capital stock’s membership interests, or any purchase, redemption or other acquisition by the Company of any of the Company’s membership interests or any other securities of the Company or any options, warrants, calls or rights to acquire any such interests or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms’s membership interests, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries Subsidiaries of any material increase in compensation, bonus compensation or other fringe benefits, except for normal increases of cash (deferred or otherwise) compensation in the ordinary course of business, (B) pursuant to any Plan or under a Law, or any material payment by the Company or any of its Subsidiaries of any material bonus, except for bonuses made in the ordinary course of business, pursuant to any Plan or under a Law, or any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Subsidiaries of any material increase in severance or termination pay, except for severance payments made in the ordinary course of business, pursuant to any Plan or (C) under a Law, or any entry by the Company or any of its subsidiaries into, or Subsidiaries into any amendment of, any currently effective employment, deferred compensation, consulting, severance, termination or indemnification agreement with or any such current agreement the benefits of which are contingent or former director, executive officer or Key Employeethe terms of which would be materially altered upon the occurrence of the transaction contemplated hereby, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices entry by the Company affecting or any of its assets, liabilities Subsidiaries into any licensing or other agreement or amendment to an agreement with regard to the acquisition or disposition of any material Intellectual Property other than licenses and services agreements in the ordinary course of business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election material change by the Company or any of its subsidiaries Subsidiaries in its accounting methods, principles or any settlement or compromise of any income tax liability by the Company or its subsidiariespractices, except as would not be required to be disclosed by concurrent changes in the Company SEC DocumentsU.S. GAAP, (vii) any change in the auditors of the Company or any of its Subsidiaries, or (viii) any material insurance transaction revaluation by the Company or any of its Subsidiaries of any of its material assets, including, writing down the value of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingbusiness.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Northern Star Investment Corp. II)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated hereby, since January 1, 2000date of the Reference Accounts and except as set forth on Schedule 2.12 hereto, the Company and its subsidiaries the Subsidiaries have conducted their respective businesses only in the ordinary coursecourse consistent with past practices and none of the following has occurred:
(a) event, and there has not been (i) fact or circumstances that, individually or in the occurrence of an event that aggregate, could reasonably be expected to result in any a material adverse effect on the Companyoperations, conditions or prospects of the Company and its Subsidiaries, taken as a whole;
(b) acquisition of or agreement to acquire by merging with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business entity, in a transaction or series of related transactions;
(c) issuance by the Company or any Subsidiary of, or commitment by it to issue, any common stock or other equity securities or obligations or any securities convertible into or exchangeable or exercisable for equity securities;
(d) indebtedness for borrowed money incurred, assumed or guaranteed by the Company or any Subsidiary or any commitment to incur any such indebtedness entered into by the Company or any Subsidiary, or any loans made or agreed to be made by the Company or any Subsidiary other than ordinary course of business indebtedness incurred to (i) lease or acquire ordinary course of business fixed assets consistent with past practice, or (ii) finance the working capital needs of the Subsidiaries in the ordinary course of business;
(e) increase in the compensation of officers or employees (including any such increase pursuant to the grant of or increase to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation payable or to become payable to any officer or employee or any severance or termination pay, except for increases to non officer employees in the ordinary course of business, consistent with past practice or as required by any existing agreement;
(f) incurrence or imposition of a lien, security interest or encumbrance on any of the assets or other properties of the Company or any Subsidiary;
(g) damage, destruction or loss (whether or not covered by insurance) in an effect due aggregate amount exceeding €10,000;
(h) delay or failure to changes affecting pay or perform any obligation (including accounts payable) of the economy Company or financial markets generally any Subsidiary when due;
(i) settlement or other resolution of any litigation, or termination, amendment, modification or waiver of, or any breach, violation or default by any party under, any contract or agreement of the Company or any Subsidiary, or entrance into a material contract, commitment or agreement;
(j) forgiveness, waiver or agreement to extend repayment of any indebtedness or other material obligation owed by or to the Company or any Subsidiary;
(k) disposition or lapse of any rights to use any of the intellectual property or intangible assets of the Company or any Subsidiary;
(l) contract, agreement or transaction with any affiliate of the Company or any Subsidiary, any officer, director, stockholder or employee of the Company or any Subsidiary or any family member of any such person other than such changes which affect in the Company ordinary course of business or as disclosed in a manner which is not proportionate with the effect of such changes on similarly situated companies, this Agreement;
(iim) any declaration, setting aside declaration or payment of any dividend or other distribution or payment (whether in cash, stock property or propertyequity interests) to the Stockholders or otherwise with respect to any the capital stock of the Company's capital stock, (iii) or any splitredemption, combination purchase or reclassification acquisition of any of the Company's capital stock or any issuance or the authorization securities of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any Subsidiary, with the exception of its subsidiaries the payment of interest pursuant to the terms and conditions of the convertible bonds issued on May 7, 2003 in a total amount, as of January 2, 2006, of €255,123, it being provided that this amount was provided under the responsibility of the Stockholders, and not verified by Purchaser, and that the Stockholders hereby undertake to provide Purchaser with any appropriate explanation or evidencing document confirming this amount as soon as possible and no later than December 31, 2005;
(n) payment on any indebtedness to any current Stockholder or former directorany person or entity affiliated with any Stockholder, executive officer with the exception of the interest owed relating to the stockholders’ debts in a total amount, as of January 2, 2006, of € 75,733 and the reimbursement, by way of set-off, of Alain Avril and Xxxxxx Xxxxxx stockholders debts, in a total amount, as of January 2, 2006, of €114,500, it being provided that these amounts were provided under the responsibility of the Stockholders, and not verified by Purchaser, and that the Stockholders hereby undertake to provide Purchaser with any appropriate explanation or other Key Employee evidencing document confirming these amounts as soon as possible and no later than December 31, 2005;
(o) material change in the tax liability of the Company and its Subsidiaries;
(p) capital expenditures or commitments for additions to any property of the Company or its subsidiaries Subsidiaries constituting capital assets in an aggregate amount exceeding €10,000 and not previously contained in a capital budget provided to Purchaser;
(q) change in the accounting methods or practices followed by or with respect to the Company and its Subsidiaries or any material write-down or write-up of the value of any increase in compensation, bonus or other benefits, except for increases in the ordinary course inventory of business, (B) any granting by the Company or any Subsidiary or write-off of its subsidiaries to any such current all or former director, executive officer or Key Employee a material portion of any increase in severance account receivable or termination pay, or (C) any entry by note receivable of the Company or any Subsidiary;
(r) changes made or pending in the amount or nature of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate reimbursements available to customers for the products of practice or policy, (vi) any tax election by the Company or its subsidiaries Subsidiaries; or
(s) negotiation, discussion or any settlement contract or compromise of any income tax liability by the Company agreement to take or its subsidiaries, except as would not be required agree to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do take any of the foregoingactions described in subsections (a) through (r) above.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement or Schedule 2.6, including without limitation the transactions contemplated herebydeclaration of dividends and transfer of assets described in Schedule 2.21, since January 1March 31, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and 2000 there has not been occurred:
(ia) the occurrence of an event that Any material adverse change, or development which could reasonably be expected to result in any a material adverse effect on change, in the Companybusiness, except for an effect due to changes affecting the economy operations, assets, financial condition or financial markets generally other than such changes which affect results of operations of the Company or Pavilion;
(b) Any damage, destruction, or other casualty loss to any property of the Company or Pavilion whether covered by insurance or not which in a manner which is not proportionate with the effect aggregate exceeds AUD200,000, or any strike, work stoppage or slow-down or other labor dispute;
(c) Any issuance of such changes on similarly situated companiesany shares of ordinary shares, preferences shares or other security of the Company or Pavilion;
(iid) any Any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any stock of the Company's capital stockCompany or Pavilion, any redemptions of any stock of the Company or Pavilion, or the issuance of any additional shares of, or options or rights to purchase any stock of the Company or Pavilion;
(iiie) any splitAny creation of a mortgage, combination pledge, lien, or reclassification of other encumbrance or security interest affecting any of the Company's capital stock assets of the Company or any issuance Pavilion;
(f) Any sale, assignment, transfer, or the authorization other disposition of any issuance tangible or intangible asset of the Company or Pavilion having a fair market value or net book value of more than AUD80,000 per asset or AUD200,000 in the aggregate;
(g) Any amendment, termination, or waiver of any other securities debt, claim or statutory, contractual or property right of substantial value (which, if quantifiable, shall mean a value in respect of, in lieu excess of AUD80,000) belonging to or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting held by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase Pavilion;
(h) Except for regular increases in compensation, bonus or other benefits, except for increases accordance with past practices and in the ordinary course of business, (B) any granting increase in the remuneration payable or to become payable by the Company or Pavilion to any of its subsidiaries to their officers, directors, employees, agents or consultants;
(i) Any change in accounting methods or practices or any such current or former director, executive officer or Key Employee revaluations of any increase of the assets or liabilities of the Company or Pavilion;
(j) Any discharge or satisfaction of any liens or encumbrances or any payment of any obligations or liabilities (absolute or contingent) of the Company or Pavilion in severance excess of AUD80,000, other than obligations or termination payliabilities paid in the ordinary course of business;
(k) Any creation of any indebtedness, obligation or liability (Cincluding any guarantee, contractual indemnification or undertaking to answer for the debts or defaults of another) any entry of the Company or Pavilion in excess of AUD80,000 except for those arising out of the ordinary course of business;
(l) Any extension of credit on account to or acceptance of a note receivable by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction Pavilion other than in the ordinary course of business; or any extension of credit to or acceptance of a note from any person or any entity who or which has another account or note with the Company or Pavilion which is 120 days or more past due, except for those arising out of the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development except as agreed upon in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory writing by the Company Buyer;
(m) Any transaction with or payment to the FairShare Program directors, officers or employees of the Company or Pavilion, except (i) bona fide service transactions negotiated on an arm's length basis in the ordinary course of business or (xiii) transactions in the ordinary course of business; or
(n) Any change in any agreement retirement or commitment (contingent pension plan for the benefit of any officer, director, employee or otherwise) to do any consultant of the foregoingCompany or Pavilion.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or To the transactions contemplated herebyknowledge of LinkSpot and except as set forth on Schedule 3.8 to the LinkSpot Disclosure Schedule, since January 1, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and Balance Sheet Date there has not been any:
(ia) LinkSpot Material Adverse Change;
(b) failure to operate the Business in the ordinary course or failure to use commercially reasonable efforts to preserve the Business intact and to preserve for ICOA the continued services of employees and independent contractors and the goodwill of suppliers, customers, corporate accounts, strategic partners/sponsors and others having business relations with LinkSpot and its Representatives;
(c) resignation or termination of any officer or employee, or any increase in the rate of compensation payable or to become payable to any officer, employee or Representative of LinkSpot, 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 Employee Plan (as defined herein) other than the extension of coverage under such plan to others who became eligible after the Balance Sheet Date;
(d) any payment, loan or advance of any amount to or in respect of, or the sale, transfer or lease of any properties or Assets to, or entering into of any Contract with, any Related Party, except compensation to employees at the rates disclosed pursuant to Section 3.18(d);
(e) sale, assignment, license, transfer of any Assets, tangible or intangible, singly or in the aggregate, other than sales of products and services and licenses in the ordinary course of business and consistent with past practice;
(f) accelerations, extensions, modifications, terminations or renewals of any Contracts (other than in the ordinary course of business);
(g) actual or threatened termination of any material corporate or promotional/sponsorship account or group of accounts or actual or threatened material reduction in purchases or royalties payable by any such corporate or promotional/sponsorship account or the occurrence of an any event that could reasonably be expected is likely to result in any material adverse effect on such termination or reduction;
(h) disposition or lapsing of any Proprietary Rights of LinkSpot, in whole or in part or, to the Companyknowledge of LinkSpot, except for any disclosure of any trade secret, process or know-how to any Person not an effect due to changes affecting employee;
(i) change in accounting methods or practices by LinkSpot;
(j) revaluation by LinkSpot of any of the economy Assets, including, without limitation, writing off notes or financial markets generally accounts receivable other than such changes for which affect the Company in reserves have been established;
(k) damage, destruction or loss (whether or not covered by insurance) that has or would be reasonably likely to have a manner which is not proportionate with the effect of such changes on similarly situated companies, LinkSpot Material Adverse Effect;
(iil) any declaration, setting aside or payment of dividends or distributions in respect of any dividend stock of LinkSpot or any redemption, purchase or other distribution acquisition of any equity securities of LinkSpot;
(whether in cashm) issuance of, reservation for issuance by LinkSpot of, or commitment by LinkSpot or its directors or officers to issue or reserve for issuance, any shares of stock or property) with respect to any other equity securities or obligations or securities convertible into or exchangeable for shares of stock or other equity securities (other than shares of LinkSpot Common Stock issued upon exercise or conversion, as the case may be, of the Company's capital stockLinkSpot Securities described in Section 3.2);
(n) increase, (iii) any split, combination decrease or reclassification of any the stock of LinkSpot;
(o) amendment of the Company's Articles of Incorporation or Bylaws of LinkSpot;
(p) capital stock expenditure or execution of any lease or any issuance or the authorization incurring of any issuance of any other securities in respect ofliability therefor by LinkSpot, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development involving payments in excess of $1,000,000 25,000 in the aggregate;
(ixq) delay or failure to pay any material labor trouble obligation of LinkSpot;
(r) cancellation of any indebtedness or claim waiver, compromise or release of wrongful discharge any rights of LinkSpot involving more than $5,000;
(s) indebtedness incurred by LinkSpot for borrowed money or other unlawful labor practice any commitment to borrow money entered into by LinkSpot, or action, (x) any improper subjection of VOI inventory loans made or agreed to be made by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.LinkSpot;
Appears in 1 contract
Samples: Merger Agreement (Icoa Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule ------------------------------------ -------- 4.8, since January 1the date of the Latest Balance Sheet, 2000, each of the Company and the --- Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse consistent with past custom and practices. Except as set forth on Schedule 4.8, and ------------ since the date of the Latest Balance Sheet, there has not been any:
(ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companyoperations, except for an effect due to changes affecting the economy condition (financial or financial markets generally other than such changes which affect otherwise), operating results, assets, liabilities, employee, customer or supplier relations or business prospects of the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesor any Company Subsidiary;
(b) damage, (ii) any declaration, setting aside destruction or payment loss of any dividend property owned or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting leased by the Company or any Company Subsidiary, whether or not covered by insurance, having a replacement cost or fair market value in excess of its subsidiaries to any current $50,000.00 in the aggregate;
(c) voluntary or former directorinvoluntary sale, executive officer transfer, surrender, cancellation, abandonment, waiver, release or other Key Employee disposition of any kind by the Company or its subsidiaries any Company Subsidiary of any increase right, power, claim, debt, asset or property (having a replacement cost or fair market value in compensation, bonus or other benefitsexcess of $50,000.00 in the aggregate), except for increases in the ordinary course of businessbusiness consistent with past custom and practices;
(d) strike, picketing, boycott, work stoppage, union organizational activity, allegation, charge, written complaint of employment discrimination or other labor dispute or similar occurrence that might reasonably be expected to adversely affect the Company, a Company Subsidiary or the Business;
(Be) any granting loan or advance by the Company or any of its subsidiaries Company Subsidiary to any such current or former directorperson, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practicecustom and practices and travel and other business-related advances to employees of the Company and Company Subsidiaries in the ordinary course of business;
(f) notice (formal or otherwise) of any liability, potential liability or claimed liability relating to environmental matters;
(viiig) declaration, setting aside, or payment of any transaction dividend or other distribution in respect of the Company's or a Company Subsidiary's capital stock or any direct or indirect redemption, purchase, or other acquisition of the Company's or any Company Subsidiary's capital stock, or the payment of principal or interest on any note, bond, debt instrument or debt to any Affiliate of the Company or any Company Subsidiary;
(h) incurrence by the Company or any Company Subsidiary of debts, liabilities or obligations except current liabilities incurred in connection with or for services rendered or goods supplied in the ordinary course of business consistent with past custom and practices, liabilities on account of taxes and governmental charges (but not penalties, interest or fines in respect thereof), and obligations or liabilities incurred by virtue of the execution of this Agreement;
(i) issuance by the Company or any Company Subsidiary of any notes, bonds, or other debt securities or any equity securities or securities convertible into or exchangeable for any equity securities;
(j) entry by the Company or any Company Subsidiary into, or material amendment or termination of, any material commitment, contract, agreement, or series transaction, other than in the ordinary course of related transactions or commitmentsbusiness and other than expiration of contracts in accordance with their terms;
(k) loss or, to acquire real estate the knowledge of the Stockholders or the Company, threatened loss of, or any material reduction or, to the knowledge of the Stockholders or the Company, threatened material reduction in revenues from, any client of the Company or any Company Subsidiary who accounted for VOI development revenues during the last twelve months in excess of $1,000,000 250,000.00, or change in the relationship of the Company or any Company Subsidiary with any client or Governmental Authority which might reasonably be expected to materially and adversely affect the Company, any Company Subsidiary or the Business;
(ixl) change in accounting principles, methods or practices (including, without limitation, any material labor trouble change in depreciation or claim of wrongful discharge amortization policies or other unlawful labor practice or action, (xrates) any improper subjection of VOI inventory utilized by the Company or any Company Subsidiary;
(m) discharge or satisfaction by the Company or any Company Subsidiary of any material liability or encumbrance or payment by the Company or any Company Subsidiary of any material obligation or liability, other than current liabilities paid in its ordinary course of business consistent with past custom and practices;
(n) sale, lease or other disposition by the Company or any Company Subsidiary of any tangible assets other than in the ordinary course of business, or sale, assignment or transfer by the Company or any Company Subsidiary of any trademarks, service marks, trade names, corporate names, copyright registrations, trade secrets or other intangible assets or disclosure of any proprietary confidential information of the Company or any Company Subsidiary to any person other than Compass, and the FairShare Program other Founding Companies and their respective officers, employees and agents;
(o) capital expenditures or commitments therefor by the Company or any Company Subsidiary in excess of $50,000.00 individually or $100,000.00 in the aggregate;
(xip) mortgage, pledge or other encumbrance of any agreement asset of the Company or commitment (contingent any Company Subsidiary or otherwise) to do creation of any easements, Liens or other interests against or on any of the foregoingReal Property (hereinafter defined);
(q) adoption, amendment or termination of any Employee Plan (hereinafter defined) or increase in the benefits provided under any Employee Plan, or promise or commitment to undertake any of the foregoing in the future; or
(r) an occurrence or event not included in clauses (a) through (q) that has resulted or is expected to result in a material adverse effect on the business, operations, property, assets, condition (financial or otherwise), operating results, liabilities, employee, customer or supplier relations or business prospects of the Company or any Company Subsidiary (a "Company Material Adverse Effect").
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass International Services Corp)
Absence of Certain Changes or Events. Except for liabilities incurred as otherwise disclosed in connection with this Agreement or set forth in Section 2.8 of the transactions contemplated herebyDisclosure Letter, since January 1September 30, 20002004 (or since September 30, 2003 in the case of item (ix) below), the Company and its subsidiaries the Subsidiaries have conducted their respective businesses only business in the ordinary course, and usual course and there has not been (i) the occurrence any change or amendment to their articles of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy incorporation or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, by-laws; (ii) any declaration, setting aside issuance or payment sale of any dividend or other distribution (whether in cash, shares of their capital stock or property) the issuance or sale of any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of their capital stock, or any agreements obligating any of them to do any of the Company's capital stock, foregoing; (iii) any splitdividends declared, combination set aside, paid or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in made with respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Shares; (iv) prior to any damage, destruction or other casualty loss (whether or not covered by insurance) materially and adversely affecting the date hereof properties or business of the Company or of the Company and the Subsidiaries considered as a whole; (Av) any granting increase in the compensation payable or to become payable by the Company or any of its subsidiaries the Subsidiaries to any current of their officers or former directoremployees or any adoption, executive amendment or change to, or any increase in, any employment, change-in-control, severance, bonus, insurance, pension or other employee benefit plan, payment or arrangement for or with any such officers or employees; (vi) any material labor dispute involving the Company or any of the Subsidiaries, (vii) any transactions between the Company or any of the Subsidiaries, on the one hand, and Seller or any subsidiary, officer, director or affiliate of Seller (other than the Company and its Subsidiaries) or any officer or other Key Employee director of the Company or its subsidiaries any of any increase the Subsidiaries, on the other hand, other than employment arrangements consistent with past practice and employment-related agreements set forth in compensation, bonus or other benefits, except for increases in Section 2.8(vii) of the ordinary course of business, Disclosure Letter; (Bviii) any granting (A) incurrences by the Company or any Subsidiary of its subsidiaries to any such current or former director, executive officer or Key Employee indebtedness in an aggregate principal amount exceeding $100,000 (net of any increase in severance or termination payamounts discharged during such period), or (CB) any entry by 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 the Company or any Subsidiary under, any indebtedness of its subsidiaries intoor owing to the Company or any Subsidiary other than pursuant to Section 5.13 of this Agreement after the date of this Agreement but prior to the Closing; (ix) any change in (A) any pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy of the Company or any Subsidiary, or (B) any method of calculating any bad debt, contingency or other reserve of the Company or any Subsidiary for accounting, financial reporting or Tax purposes, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate fiscal year of practice or policy, (vi) any tax election by the Company or its subsidiaries any Subsidiary; (x) any write-off or write-down of or any settlement determination to write off or compromise write down any of any income tax liability by the assets and properties of the Company or its subsidiariesany Subsidiary in an aggregate amount exceeding $25,000; (xi) any acquisition or disposition of, except as would not be required to be disclosed in or incurrence of any liens, charges, pledges, security interests, or other encumbrances on, any assets and properties of the Company SEC Documentsor any Subsidiary, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, ; (viiixii) any transaction (A) recapitalization, reorganization, liquidation or commitmentdissolution of the Company or any Subsidiary or (B) merger or other business combination involving the Company or any Subsidiary and any other person other than the dissolution or transfer of certain Subsidiaries as set forth on Section 2.4 of the Disclosure Letter; (xiii) any entering into, amendment, modification, termination (partial or series complete) or granting of related transactions a waiver under or commitments, giving any consent with respect to acquire real estate for VOI development (A) any contract which is required (or had it been in excess of $1,000,000 effect on the date hereof would have been required) to be disclosed pursuant to Sections 2.12 and 2.20 and or (ixB) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory license held by the Company or any Subsidiary; (xiv) capital expenditures or commitments for additions to property, plant or equipment of the FairShare Program or Company and the Subsidiaries constituting capital assets in an aggregate amount exceeding $25,000; (xixv) any agreement commencement or commitment termination by the Company or any Subsidiary of any line of business; (contingent or otherwisexvi) any entering into of a contract to do or engage in any of the foregoingforegoing after the date hereof; or (xvii) any other commitment or transaction entered into by the Company or any of the Subsidiaries that is material to the Company or to the Company and the Subsidiaries considered as whole, other than in the ordinary course of business.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule ------------------------------------ -------- 4.9, since January 1the date of the Latest Balance Sheet, 2000, each of the Company and the --- Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse consistent with past custom and practices. Except as set forth on Schedule 4.9, and ------------ since the date of the Latest Balance Sheet, there has not been any:
(ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companyoperations, except for an effect due to changes affecting the economy condition (financial or financial markets generally other than such changes which affect otherwise), operating results, assets, liabilities, employee or client relations or prospects of the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesor any Company Subsidiary;
(b) damage, (ii) any declaration, setting aside destruction or payment loss of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting property owned by the Company or any Company Subsidiary, or used in the operation of its subsidiaries to any current the Business, whether or former directornot covered by insurance, executive officer having a replacement cost or fair market value in excess of five percent (5%) of the amount of net property, plant and equipment shown on the Latest Balance Sheet, in the aggregate;
(c) voluntary or involuntary sale, transfer, surrender, cancellation, abandonment, waiver, release or other Key Employee of the Company or its subsidiaries disposition of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting kind by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee Company Subsidiary of any increase in severance or termination payright, power, claim, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesdebt, except as would not be required to be disclosed in the Company SEC Documentscollection of accounts and billing of work-in-process, (vii) any material insurance transaction other than each in the ordinary course of business consistent with past practicecustom and practices;
(d) strike, (viii) any transaction picketing, boycott, work stoppage, union organizational activity, allegation, charge or commitment, or series complaint of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge employment discrimination or other unlawful labor practice dispute or actionsimilar occurrence that is reasonably expected to adversely affect the Company, a Company Subsidiary or the Business;
(xe) any improper subjection of VOI inventory loan or advance by the Company or any Company Subsidiary to any Person, other than as a result of services performed for, or expenses properly and reasonably advanced for the FairShare Program or benefit of, customers in the ordinary course of business consistent with past custom and practices;
(xif) any agreement or commitment notice (contingent formal or otherwise) of any liability, potential liability or claimed liability relating to do environmental matters;
(g) declaration, setting aside, or payment of any dividend or other distribution in respect of the foregoingCompany's capital stock or other equity interests or any direct or indirect redemption, purchase, or other acquisition of the Company's or any Company Subsidiary's capital stock or other equity interests, or the payment of principal or interest on any note, bond, debt instrument or debt to any Affiliate (as defined in Section ------- 15.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on SCHEDULE 3.6, since January 1September 30, 20001998, the Company and has conducted its subsidiaries have conducted their respective businesses business only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companybusiness, except for an effect due to changes affecting the economy assets, results of operations, customer and employee relations, or financial markets generally other than such changes which affect business prospects of the Company in and its subsidiaries, taken as a manner which is not proportionate with the effect of such changes on similarly situated companies, whole; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, ; (iii) any split, combination or reclassification of any of the Company's its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's its capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ; (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or any of its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, business consistent with prior practice or as required under existing employment agreements; (Bv) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or ; (Cvi) any an entry by the Company or any of its subsidiaries into, or any amendment of, into any employment, deferred compensation, consulting, severance, severance or termination or indemnification agreement with any such current officer; (vii) any damage, destruction or former directorloss, executive officer whether or Key Employeenot covered by insurance, that has had or is likely to have a Company Material Adverse Effect; (vviii) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company materially affecting its assets, liabilities or business, includingexcept insofar as may have been required by a change in generally accepted accounting principles; or (ix) any adoption or amendment in any material respect by the Company or any of its subsidiaries of any bonus, without limitationpension, any reservingprofit sharing, renewal deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or residual methodother plan, arrangement or understanding in each case maintained or contributed to, or estimate of practice required to be maintained or policycontributed to, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise for the benefit of any income tax liability by current or former employee, officer or director of the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingits subsidiaries (each, a "Company Benefit Plan" and, collectively, "Company Benefit Plans").
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with From the Company Balance Sheet Date to the date of this Agreement or the transactions contemplated herebyAgreement, since January 1, 2000, each of the Company and the Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, and during such period, there has not been occurred:
(a) a Company Material Adverse Effect;
(b) any action or event of the type described in Section 5.2;
(c) any material loss, damage or destruction to, or any material interruption in the use of, any of the assets of any of the Company or the Company Subsidiaries (whether or not covered by insurance);
(d) (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting accrual, set aside or payment of any dividend or any other distribution in respect of any shares of capital stock of the Company or the Company Subsidiaries, or (whether in cashii) any repurchase, redemption or other acquisition by the Company or the Company Subsidiaries of any shares of capital stock or propertyother securities;
(e) with respect to any sale, issuance or grant, or authorization of the Company's issuance of, (i) any capital stockstock or other security of the Company or the Company Subsidiaries (except for Company Common Stock issued upon the valid exercise of outstanding Company Options or settlement of Company Restricted Stock Units), (ii) any option, warrant or right to acquire any capital stock or any other security of the Company or the Company Subsidiaries (except for Company Options and Company Restricted Stock Units set forth in Section 3.3(a)), or (iii) any split, combination instrument convertible into or reclassification exchangeable for any capital stock or other security of the Company or the Company Subsidiaries;
(f) any amendment or waiver of any of the Company's capital stock rights of the Company or the Company Subsidiaries under, or acceleration of vesting under, (i) any provision of any of the Company Benefit Plans, or (ii) any provision of any Contract evidencing any outstanding Company Option, Company Restricted Stock Unit, or Company Restricted Share granted under the Company Stock Plans;
(g) (i) any amendment to the Company Articles or the Company Bylaws, or any issuance or the authorization organizational document of any issuance Company Subsidiary, or (ii) any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction involving the Company or any Company Subsidiary;
(h) [reserved]
(i) any creation of any other securities in respect of, in lieu of or in substitution for shares Subsidiary of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of or any Company Stock Options Subsidiary or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting acquisition by the Company or any Company Subsidiary of its subsidiaries to any current or former director, executive officer equity interest or other Key Employee of the Company or its subsidiaries of interest in any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, Person;
(Bj) any granting capital expenditure by the Company or any Company Subsidiary which, when aggregated with all other capital expenditures made on behalf of its subsidiaries to any such current the Company and the Company Subsidiaries since the date of the Company Balance Sheet, exceeds $30,000 individually or former director, executive officer or Key Employee of any increase $400,000 in severance or termination pay, or the aggregate;
(Ck) any entry action by the Company or any Company Subsidiary to (i) enter into or suffer any of its subsidiaries intothe assets owned or used by it to become bound by any Material Contract, or (ii) amend or terminate, or waive any amendment ofright or remedy under, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, Material Contract;
(v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vil) any tax election (i) acquisition, lease or license by the Company or its subsidiaries or any settlement or compromise Company Subsidiary of any income tax liability material right or other material asset from any other Person, (ii) sale or other disposal or lease or license by the Company or its subsidiariesany Company Subsidiary of any material right or other material asset to any other Person, or (iii) waiver or relinquishment by the Company or any Company Subsidiary of any right, except as would not be required to be disclosed in the Company SEC Documentsfor rights or other assets acquired, (vii) any material insurance transaction other than leased, licensed or disposed of in the ordinary course of business and consistent with past practice, practices;
(viiim) any transaction or commitmentwrite-off as uncollectible, or series establishment of related transactions any extraordinary reserve with respect to, any account receivable or commitmentsother indebtedness of the Company or any Company Subsidiary that exceeds $25,000 individually or $100,000 in the aggregate;
(n) any pledge of any assets of or sufferance of any of the assets of the Company or any Company Subsidiary to become subject to any Lien, except for pledges of immaterial assets made in the ordinary course of business and consistent with past practices;
(o) any (i) loan by the Company or any Company Subsidiary to acquire real estate any Person (other than any wholly owned Company Subsidiary other than any such Company Subsidiary listed in Section 3.9(o) of the Company Disclosure Letter), or (ii) incurrence or guarantee by the Company or any Company Subsidiary of any indebtedness for VOI development borrowed money;
(p) any (i) adoption, establishment, entry into or amendment by the Company or any Company Subsidiary of any Company Benefit Plan, or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of the directors, officers or Employees of the Company or the Company Subsidiaries;
(q) any change of the methods of accounting or accounting practices of the Company or any Company Subsidiary in any material respect;
(r) any material Tax election by the Company or any Company Subsidiary;
(s) any notice of audit or recoupment of amounts previously reimbursed by any Governmental Entity or Third Party payor, in an amount in excess of $1,000,000 100,000;
(ixt) any material labor trouble or claim adjustment in excess of wrongful discharge or other unlawful labor practice or action, $200,000 to balances reflected in the Company’s consolidated financial statements that do not pertain to the period covered by such consolidated financial statements;
(xu) any improper subjection of VOI inventory amendment to any Third Party payor Contract that would result in a change in an amount to be received by the Company to or the FairShare Program Company Subsidiaries in excess of $200,000, individually or in the aggregate, in any twelve-month period;
(xiv) any commencement or settlement of any Proceeding by the Company or any Company Subsidiary; or
(w) any agreement or commitment (contingent or otherwise) to do take any of the foregoingactions referred to in clauses (b) through (v) above.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement or Section 3.7 of the transactions contemplated herebySellers' Disclosure Letter since December 31, since January 11999, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (iia) any declaration, setting aside declaration or payment of any dividend or other distribution in respect of the Shares; (b) any adverse change in Company's business or the results of its operations; (c) any damage, destruction or casualty loss, whether or not covered by insurance, affecting Company's assets or business; (d)
(i) any increase in cashthe rate or terms of compensation payable to or to become payable to Company's employees (the "Employees"), stock except increases occurring in accordance with Company's customary practices or propertyas required by existing employment agreements or (ii) with respect any modifications in employee benefits to the Employees; (e) entry into, termination of (except by reason of the occurrence of a contractually specified termination date) or amendment to any of the contract or commitment or license or permit material to Company's capital stock, business; (iiif) any splitcreation or assumption of any mortgage, combination pledge, or reclassification other lien or encumbrance upon any of Company's assets; (g) any sale, assignment, lease, transfer or other disposition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stockassets, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, ; (Bh) any granting by the Company imposition or any of its subsidiaries to any such current or former director, executive officer or Key Employee incurring of any increase in severance obligation or termination payliability, fixed or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariescontingent, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business; (i) entry into any agreement with respect to the operation of Company's business consistent with past practicepursuant to which the aggregate annual financial obligation of Company may exceed $10,000, or which is not terminable by Company without penalty upon 30 days' notice or less; (viiij) any transaction or commitmentcommitment to make any purchase for, or series sale or license of related transactions any equipment, supplies, Proprietary Rights, Software, or commitmentsinventories relating to the operation of Company's business, to acquire real estate for VOI development except in the ordinary course of business; (k) any commitment in excess of $1,000,000 10,000 for any capital expenditure which Company shall have any financial obligation to discharge subsequent to Closing; or (ixl) any material labor trouble or claim transaction otherwise relating to Company's business not in the ordinary course of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingbusiness.
Appears in 1 contract
Samples: Stock Purchase Agreement (Elite Information Group Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated herebyServicesoft Balance Sheet Date, since January 1, 2000, Servicesoft and the Company and its subsidiaries Subsidiaries have conducted carried on their respective businesses only business in the ordinary coursecourse substantially in accordance with the procedures and practices in effect on the Servicesoft Balance Sheet Date.
(a) Except as set forth in Item 4.11(a) of the Servicesoft Disclosure Letter or permitted by the terms of this Agreement, and since the Servicesoft Balance Sheet Date there has not been with respect to Servicesoft or any Subsidiary:
(i) any change, circumstance or effect that is or is reasonably likely to be materially adverse to the occurrence business, employees, assets (including intangible assets), capitalization, financial condition, operations or results of an event that could reasonably be expected to result in any material adverse effect on the Companyoperations of Servicesoft and its Subsidiaries, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in taken as a manner which is not proportionate with the effect of such changes on similarly situated companies, whole;
(ii) any declaration, setting aside contingent liability incurred by Servicesoft or payment of any dividend Subsidiary as guarantor or other distribution (whether in cash, stock or property) surety with respect to any the obligations of others which exceed in the Company's capital stock, aggregate $100,000;
(iii) any splitmortgage, combination encumbrance or reclassification of lien placed on any of the Company's capital stock properties of Servicesoft or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof Subsidiary except: (A) any granting by the Company or any of its subsidiaries to any current or former directormechanics', executive officer or carriers', workers' and other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases similar liens arising in the ordinary course of business, and (B) liens for current Taxes not yet due and payable;
(iv) any granting by purchase, license, sale or other disposition, or any agreement or other arrangement for the Company purchase, license, sale or other disposition, of any of the property (including Servicesoft IP Rights, as defined in Section 4.12(b)), assets or goodwill of Servicesoft or any of its subsidiaries to any such current or former director, executive officer or Key Employee Subsidiaries other than in the ordinary course of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement business and consistent with any such current or former director, executive officer or Key Employee, past practice;
(v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (damage, destruction or underlying assumptions)loss of any material property or asset, principles whether or practices not covered by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, insurance;
(vi) any tax election by change in the Company compensation payable or its subsidiaries to become payable to any of Servicesoft's or any settlement Subsidiary's directors, officers, employees or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, consultants (vii) any material insurance transaction other than normal raises) for non-officers in connection with promotions or annual performance evaluations, in the ordinary course of business consistent with past practice), or any change or agreement to make any bonus or similar payment or arrangement made to or with any of such directors, officers, employees or consultants, other than normal bonuses granted or committed to be granted prior to the date of this Agreement;
(vii) any material change with respect to the senior management of Servicesoft or any Subsidiary or the termination of the employment of a material number of employees of Servicesoft and its Subsidiaries; or
(viii) any loss of one or more material customers of Servicesoft or any Subsidiary or such number of such customers which together represent a material amount of business.
(b) Except as set forth in Item 4.11(b) or as permitted by the terms of this Agreement, since the Servicesoft Balance Sheet Date neither Servicesoft nor any Subsidiary has:
(i) formed any subsidiary or acquired any equity interest or other interest in any other entity;
(ii) amended their certificates of incorporation, bylaws or any other charter document;
(iii) made any payment or discharged any material lien or liability of Servicesoft or any Subsidiary, which lien or liability was not either (A) shown on the balance sheet as of the Servicesoft Balance Sheet Date included in the Servicesoft Financial Statements or (B) incurred in the ordinary course of business after the Servicesoft Balance Sheet Date;
(iv) incurred any obligation or liability to any of their officers, directors, stockholders or affiliates, or any loans or advances made to any of its officers, directors, stockholders or affiliates, except normal compensation and expense allowances payable to officers or directors;
(v) sold, issued, granted or authorized the issuance or grant of: (A) any shares of its capital stock of any class or other security (other than (1) options issued to employees in the ordinary course of business consistent with past practice and identified in Item 4.3(b) of the Servicesoft Disclosure Letter (all of which had been granted as of the date of this Agreement), or (2) pursuant to exercise of outstanding stock options and warrants); (B) any option, call, warrant, obligation, subscription, or other right to acquire any capital stock or any other security, except for stock options described in Section 4.3 or (C) any instrument convertible into or exchangeable for any capital stock or other security; or accelerated the vesting of any outstanding option or other security, except for acceleration provisions that are contained in existing stock option grants (each of which is listed in Item 4.11(b));
(vi) 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;
(vii) effected any split, stock dividend, combination or recapitalization of their capital stock or any direct or indirect redemption, purchase or other acquisition by Servicesoft or any Subsidiary of their capital stock;
(viii) 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 6.7(a));
(ix) executed, amended, relinquished, terminated or failed to renew any material Contract, lease, transaction or legally binding commitment other than in the ordinary course of its business (nor to Servicesoft's knowledge, 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);
(x) deferred the payment of any accounts payable outside the ordinary course of business or in an amount which is material or any discount, accommodation or series other concession made outside the ordinary course of related transactions business in order to accelerate or commitmentsinduce the collection of any receivable;
(xi) borrowed any money other than in the ordinary course of its business, to acquire real estate for VOI development and not in excess of $1,000,000 100,000 in the aggregate;
(ixxii) been the subject of any material pending or, to Servicesoft's knowledge, threatened labor trouble dispute or claim of wrongful discharge unfair labor practices; or
(xiii) made or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) entered into any agreement or commitment (contingent or otherwise) understanding to do any of the foregoingforegoing (other than as disclosed in Item 4.11(b)).
Appears in 1 contract
Samples: Merger Agreement (Servicesoft Inc)
Absence of Certain Changes or Events. Except as permitted under Section 5.02 for liabilities incurred in connection with this Agreement or changes occurring after the transactions contemplated herebydate hereof, since January 1December 31, 2000, the Company and its subsidiaries Subsidiaries have conducted operated their respective businesses business only in the ordinary course, course and there has not been been:
(ia) any event, act, occurrence or omission to act or occur which has had a Company Material Adverse Effect or any event, fact or condition of which the occurrence of an event Company or any Subsidiary is aware that could would reasonably be expected to result have a Company Material Adverse Effect and that has not been disclosed in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with Disclosure Schedule;
(b) any amendment of or change to the effect of such changes on similarly situated companies, Company Charter Documents or the Company Stock Option Plan;
(iic) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, ;
(iiid) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for for, shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(ive) prior to the date hereof (Ai) any granting increase in or modification of the compensation or benefits payable or to become payable by the Company or any of its subsidiaries Subsidiaries to any current director or former directoremployee with the title of vice president or above, executive officer or other Key Employee of the Company or its subsidiaries of (ii) any increase in compensation, bonus or other benefits, except for increases in modification of the ordinary course of business, (B) any granting compensation or benefits payable or to become payable by the Company or any of its subsidiaries Subsidiaries to any employee with a title below vice president that involved an increase of more than 10% for any such current employee; (iii) any grant by the Company or former director, executive officer or Key Employee any of its Subsidiaries to any employee of any increase in severance or termination pay, or (Civ) any entry by the Company or any of its subsidiaries into, or any amendment of, Subsidiary into any employment, deferred compensation, consulting, severance, severance or termination or indemnification agreement with any such current employee, or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed other than the grant of options to employees of the Company and its Subsidiaries in Company SEC Documents or required by a change in GAAPthe ordinary course consistent with past practice, any material change in accounting methods (grant, whether or underlying assumptions), principles or practices by not to an employee of the Company affecting or any of its assetsSubsidiaries, liabilities of any option, warrant or right to purchase or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries;
(f) any increase in or modification of any bonus, pension, insurance or other employee benefit plan, payment or arrangement made to, for or with any employees of the Company or any of its Subsidiaries;
(g) other than the sale of the Company's and its Subsidiaries' products in the ordinary course of business, including, without limitation, any reserving, renewal sale of the property or residual method, assets of the Company or estimate any of practice or policy, its Subsidiaries;
(vih) any tax election alteration in any term of any outstanding security of the Company;
(i) any (i) incurrence, assumption or guarantee by the Company or any of its subsidiaries Subsidiaries of any debt for borrowed money; (ii) issuance or sale of any securities convertible into or exchangeable or exercisable for debt securities of the Company or any settlement of its Subsidiaries; or compromise (iii) issuance or sale of options or other rights to acquire from the Company or any income tax liability of its Subsidiaries, directly or indirectly, debt securities of the Company or any of its Subsidiaries or any securities convertible into or exchangeable or exercisable for any such debt securities;
(j) any creation or assumption by the Company or any of its subsidiariesSubsidiaries of any Lien on any asset (other than Liens arising under existing lease financing arrangements, except as would not be required to be disclosed Liens arising in the Company SEC Documents, ordinary course of the Company's or any of its Subsidiaries' business which in the aggregate are not material and Liens for taxes not yet due and payable);
(viik) any material insurance transaction making of 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, ;
(viiil) any transaction entry into, amendment of, relinquishment, termination or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory non-renewal by the Company or any of its Subsidiaries of any right or obligation material to the FairShare Program Company or any of its Subsidiaries;
(xim) any transfer, grant or loss by the Company or any of its Subsidiaries or a material reduction in the value of any Company Intellectual Property (as defined in Section 3.13(a)(i)) other than those transferred or granted in the ordinary course of business consistent with past practice;
(n) any labor dispute, other than individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its Subsidiaries;
(o) any violation of or conflict with any applicable Regulations promulgated or judgment entered by any Governmental Entity which, individually or in the aggregate, has had (or, insofar as the Company is aware, would reasonably be expected to have) a Company Material Adverse Effect;
(p) any agreement or commitment arrangement made by the Company or any of its Subsidiaries to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Article III untrue or incorrect as of the date when made;
(contingent q) any damage, destruction or otherwiseloss, whether or not covered by insurance, that has had or would reasonably be expected to have a Company Material Adverse Effect;
(r) any change in accounting practices by the Company or any of its Subsidiaries, or any election, arrangement or settlement for Tax purposes with respect to the Company or any of its Subsidiaries; or
(s) any agreement, whether or not in writing, to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Freemarkets Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated hereby, since January 1, 2000Latest Balance Sheet, the Company and has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, course consistent with past practice and there has not been any:
(a) Material Adverse Effect, and no event, fact or circumstances has occurred that, individually or in the aggregate, is reasonably likely to result in a Material Adverse Effect;
(b) in a single transaction or a series of related transactions, sale (including by sale-leaseback), lease, license, pledge, transfer, disposition of or other imposition of any Lien on any assets which, individually or in the aggregate, have a fair market value in excess of $25,000, other than sales of inventory in the ordinary course of business and consistent with past practice;
(c) acquisition of or agreement to acquire by merging with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business entity, in a transaction or series of related transactions;
(d) change in accounting methods, principles or practices by the Company affecting any of its liabilities, results of operations or business;
(e) revaluation by the Company of any of its Properties, including without limitation, any write-offs, increases or decreases in any reserves or any write-up or write-down of the value of inventory, property, plant, equipment or any other Property or any change in any assumptions underlying, or facts relating to, or methods of calculating, any bad debt, contingency or other reserves other than listed on Schedule 3.9;
(f) issuance by the Company of, or commitment to issue, any common stock or other equity securities or obligations or any securities convertible into or exchangeable or exercisable for equity securities;
(g) Indebtedness incurred, assumed or guaranteed by the Company or any commitment to incur Indebtedness entered into by the Company, or any loans made or agreed to be made by the Company;
(h) increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation payable or to become payable to any officer or employee or any severance or termination pay, except for increases in the ordinary course of business, consistent with past practice or as required by law or any existing agreement and except for cost of living adjustments and other increases consistent with past practice other than as set forth on the Disclosure Schedules;
(i) granting of any bonus, incentive compensation, service, award or other like benefit to any officer or employee except in accordance with plans or arrangements disclosed on the occurrence Disclosure Schedules;
(j) incurrence or imposition of a Lien on any of the assets or other Properties of the Company;
(k) damage, destruction or loss (whether or not covered by insurance) in an event that could reasonably be expected aggregate amount exceeding $25,000 and adversely affecting the financial condition, assets, liabilities, Properties, business, results of operation or prospects of the Company;
(l) delay or failure to result in pay or perform any obligation (including accounts payable) of the Company when due;
(m) acceleration, prepayment or performance of any account receivable or any Indebtedness or other material adverse effect on obligation owed to the Company before it is due or otherwise owed;
(n) termination, amendment, modification or waiver of, or any breach, violation or default by any party under, any Contract;
(o) forgiveness, waiver or agreement to extend repayment of any Indebtedness or other material obligation owed by or to the Company;
(p) disposition or lapse of any rights to use any of the Proprietary Rights of the Company;
(q) contract, agreement or transaction with any Affiliate of the Company, except for an effect due to changes affecting the economy any officer, director, stockholder or financial markets generally other than such changes which affect employee of the Company in a manner which is not proportionate with the effect or any family member of any such changes on similarly situated companies, person;
(iir) any declaration, setting aside or payment of any dividend or other distribution or payment (whether in cash, stock property or propertyequity interests) with respect to any the capital stock of the Company's capital stock, (iii) or any splitredemption, combination purchase or reclassification acquisition of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's ;
(s) material change in the federal, state or local tax liability of the Company;
(t) capital stock, except expenditures or commitments for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries additions to any current or former director, executive officer or other Key Employee Property of the Company or its subsidiaries of any increase constituting capital assets in compensation, bonus or other benefits, except for increases an aggregate amount exceeding $50,000 and not previously contained in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company capital budget furnished to the FairShare Program Purchaser; or
(u) agreement to take or (xi) any agreement or commitment (contingent or otherwise) agree to do take any of the foregoingactions described in subsections (a) through (t) above.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cam Commerce Solutions Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince December 31, since January 12014, 2000, (a) the Company and its subsidiaries Subsidiaries have conducted their respective businesses only in all material respects in the ordinary coursecourse of business consistent with past practice, and (b) there has not been (iA) any change in the financial condition, business or results of their operations or any circumstance, occurrence or development of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in has Knowledge, that has had or is reasonably likely to have a manner which is not proportionate with the effect of such changes on similarly situated companiesCompany Material Adverse Effect, (iiB) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of share capital of the Company or any of its Subsidiaries (except for dividends or other distributions by any Subsidiary to the Company or to any Subsidiary of the Company's capital stock, ); (iiiC) any split, combination material change in any method of accounting or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting accounting practice by the Company or any of its subsidiaries Subsidiaries; (D) any making or revocation of any material Tax election, any settlement or compromise of any material Tax liability, or any change (or request to any current or former director, executive officer or other Key Employee taxing authority to change) any material aspect of the Company or its subsidiaries method of any increase in compensation, bonus or other benefits, except for increases in the ordinary course accounting of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or Subsidiaries for Tax purposes; (CE) any entry by amendment to the memorandum and articles of association (or other similar governing instrument) of the Company or any of its subsidiaries intoSubsidiaries; (F) any adoption of, resolution to approve or petition or similar proceeding or order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, of its Subsidiaries; (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (viG) any tax election by receiver, trustee, administrator or other similar Person appointed in relation to the affairs of the Company or its subsidiaries property or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program part thereof; or (xiH) any agreement or commitment (contingent or otherwise) to do any of the foregoingforegoing .
Appears in 1 contract
Samples: Merger Agreement (Mecox Lane LTD)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement or the transactions contemplated herebySchedule 6.1(i), since January 1October 4, 2000, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and 1998 there has not been (i) any damage, destruction or other casualty loss with respect to property owned by the occurrence Company or any of an event that its Subsidiaries not covered by insurance, or any strike, work stoppage or slowdown or other labor trouble involving the Company or any of its Subsidiaries which, in any of such cases, materially and adversely affected, or could reasonably be expected to result affect in the future, the financial condition of the Company and its Subsidiaries considered as a whole; (ii) any material adverse effect on change in the Companyfinancial condition of the Company and its Subsidiaries, except for an effect due considered as a whole, excluding any changes and effects resulting from changes in economic, regulatory or political conditions or changes in conditions generally applicable to changes affecting the economy or financial markets generally other than such changes industries in which the Company and its Subsidiaries are involved and which do not affect the Company in a manner which is not proportionate with materially disproportionate to the effect of on CBRL and except for any such changes on similarly situated companiesor effects resulting from this Agreement, the transactions contemplated hereby or the announcement thereof, or changes or effects previously disclosed in writing (iiincluding all Schedules attached hereto) by the Company to CBRL and its representatives; (iii) any issuance by the Company or any of its Subsidiaries of any shares, options, calls or commitments relating to shares of the Company's or its Subsidiaries' capital stock, or any securities or obligations convertible into or exchangeable for, or giving any person any right to acquire from the Company or any of its Subsidiaries, any shares of the Company's or its Subsidiaries' capital stock, other than the issuance by the company pursuant to the Stock Option Plans of shares of Common Stock upon the exercise of options granted under such Stock Option Plans, or any redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such shares; (iv) any split, combination or other similar change in the outstanding shares of the Company; or (v) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, capital stock or property) with respect to any the capital stock of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (CBRL Group Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement or the transactions contemplated herebyExchange Act Reports filed prior to the date hereof since September 30, since January 1, 20002003, the Company and each of its subsidiaries Subsidiaries has not: (a) suffered any change, including any casualty, to its assets, in its business, operations or financial position, except such changes which, in the aggregate, are not reasonably likely to have a Company Material Adverse Effect, (b) conducted their respective businesses only its business in any material respect not in the ordinary coursecourse of business consistent with past practice or (c) except as is not reasonably likely, and there has not been in the aggregate, to have a Company Material Adverse Effect (i) incurred any indebtedness or issued any debt securities or assumed or guaranteed the occurrence obligations of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesPerson, (ii) any declarationdeclared, setting set aside for payment or payment of paid any dividend or other distribution (whether in cash, stock stock, property or propertyany combination thereof) with in respect to of the equity of the Company or redeemed or otherwise acquired any interests of equity of the Company's capital stock, (iii) any splitsold, combination transferred or reclassification otherwise disposed of any of the Company's capital stock its material property or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsassets, (iv) prior to increased in any manner the date hereof (A) any granting by the Company rate or terms of compensation of any of its subsidiaries to any current directors or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employeeofficers, (v) except insofar as may have been disclosed in Company SEC Documents paid or agreed to pay any pension, retirement allowance or other employee benefit not required by a change in GAAPlaw or any existing plan or other agreement or arrangement to any such director, any material change in accounting methods (officer or underlying assumptions)employee, principles whether past or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policypresent, (vi) entered into or amended any tax election by employment, bonus, severance or retirement contract for employees of the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC DocumentsCompany, (vii) suffered any material insurance transaction other than in the ordinary course of business consistent with past practicework stoppage or labor dispute, or (viii) any transaction acquired or commitment, or series of related transactions or commitments, agreed to acquire real estate for VOI development any interest in excess of $1,000,000 (ix) any corporation, partnership, limited liability company or other entity. To the Company’s Knowledge, the Company and its Subsidiaries have not incurred any material labor trouble or claim liabilities in connection with the items set forth in Section 3.6(b) of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to Disclosure Letter, and the FairShare Program or (xi) representation set forth in this sentence shall not be qualified by any agreement or commitment (contingent or otherwise) to do any of matter set forth in the foregoingCompany Disclosure Letter.
Appears in 1 contract
Samples: Merger Agreement (Agl Resources Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed or reflected in connection with this Agreement the Company SEC Documents or as disclosed in Section 3.1(f) of the transactions contemplated herebyCompany Disclosure Letter, since January 1December 31, 20002003, the Company and its subsidiaries the Company Subsidiaries have conducted their respective businesses business only in the ordinary course, course and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (iiA) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company Shares other than any declaration, setting aside or payment of distributions with respect to the Series B Shares expressly permitted by the terms hereof or in exchange for LP Units pursuant to the terms thereof; (B) any amendment of any term of any outstanding equity security of the Company or any Company Subsidiary; (C) any repurchase, redemption or other acquisition by Company or any Company Subsidiary of any outstanding shares of beneficial interest or stock or other Equity Interest of, or other ownership interests in, the Company or any Company Subsidiary; (D) any material change in any method of accounting or accounting practice or any material change in any tax method or election by the Company or any Company Subsidiary; (E) any amendment of any employment, consulting, severance, retention or any other agreement between the Company and any officer or director of the Company's capital stock; (F) any change, event, effect, damage, destruction or loss relating to the business or operations of the Company or any Company Subsidiary that has had, or could reasonably be expected to have, a Company Material Adverse Effect, or (iiiG) any other event or development with respect to the Company or any Company Subsidiary that has had, or could reasonably be expected to have, a Company Material Adverse Effect and (ii) any split, combination or reclassification of any of the Company's capital stock Company Shares or the LP Units, or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of for, or giving the Company's capital stockright to acquire by exchange or exercise, except for issuances of Company Common Stock upon the exercise of Company Stock Options Shares or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company LP Units or any issuance of its subsidiaries to an ownership interest in any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingSubsidiary.
Appears in 1 contract
Absence of Certain Changes or Events. Except Since the Most Recent Audited Financial Statements Date, except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000marketing of the Company and/or the Business for sale and the Transactions, the Company and has carried on its subsidiaries have conducted their respective businesses only business in the ordinary course, consistent with past practice, and there has been no Company Material Adverse Effect. Without limiting the foregoing, except as set forth on Schedule 3.8 of the Company Disclosure Schedule, since September 30, 2013, except for the marketing of the Company and/or the Business for sale and the Transactions, there has not been with respect to Company:
(ia) any Liability incurred other than in the occurrence ordinary course of an event that could reasonably be expected business, consistent with past practice, or any borrowing of monies in excess of $10,000 in the aggregate;
(b) any making of any loan, advance or capital contribution to, or investment in, any Person other than travel loans or advances made in the ordinary course of business, consistent with past practice;
(c) any Contract with respect to result any acquisition, sale or transfer of any asset of the Company (other than the sale or nonexclusive license of Products to its customers in the ordinary course of business consistent with past practice or any such transaction for which the consideration is less than $10,000);
(d) any material adverse effect on the Companydamage, except for an effect due to changes destruction or loss, whether or not covered by insurance, affecting the economy its assets, properties or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, business;
(iie) any declaration, setting aside or payment of any dividend on, or the making of any other distribution (whether in cash, stock or property) with respect to any securities of the Company's capital stock, (iii) any split, Company or combination or reclassification recapitalization of any securities of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any direct or indirect redemption, purchase or other acquisition by the Company of its subsidiaries to securities, or any current change in any rights, preferences, privileges or former directorrestrictions of any of its outstanding securities;
(f) any entry into, executive officer amendment of, or relinquishment, termination or nonrenewal by it of any Contract or other Key Employee of the Company right or its subsidiaries of any increase in compensation, bonus or obligation other benefits, except for increases than in the ordinary course of business, consistent with past practice, but in no event involving obligations (Bcontingent or otherwise) of or payments to it in excess of $5,000 individually or $10,000 in the aggregate;
(g) any granting by payment or discharge of any Lien or Liability, which Lien or Liability was not either (i) shown on the Company Audited Financial Statements or (ii) incurred in the ordinary course of business, consistent with past practice, after the Most Recent Audited Financial Statements Date;
(h) any of its subsidiaries sale, disposition, transfer or license to any such current or former director, executive officer or Key Employee Person of any increase in severance or termination pay, or (C) any entry by the rights to Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction Intellectual Property other than in the ordinary course of business consistent with past practicepractice or any acquisition or license from any Person of any Intellectual Property or any sale, disposition, transfer or providing of any copy of any Company Source Code to any Person;
(viiii) any transaction deferral of the payment of any accounts payable or commitmentany discount, accommodation or series other concession made in order to accelerate or induce the collection of related transactions any receivable;
(j) any material change in the manner in which it extends discounts, credits or commitments, warranties to acquire real estate for VOI development in excess of $1,000,000 its customers or otherwise deals with its customers;
(ixk) any material labor trouble dispute or any claim of wrongful discharge unfair labor practices;
(l) any modification of the benefits payable, or to become payable, to any of its directors, officers or employees, or any increase in the compensation (including severance and equity compensation) payable, or to become payable, to any of its directors, officers or employees, or any bonus payment or arrangement made to or with any of such directors, officers or employees;
(m) any increase in or modification of any bonus, pension, insurance or other unlawful labor practice employee benefit plan, payment or actionarrangement made to, for or with any of its directors, officers, employees, consultants or independent contractors;
(xn) any improper subjection amendment or change to the Company Charter Documents or other equivalent organizational or governing documents of VOI inventory the Company; or
(o) any negotiation by or any entry into any Contract by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingthings described in the preceding clauses (a) through (n) (other than negotiations and agreements with Buyer and the Buyer Representatives regarding the Transactions).
Appears in 1 contract
Samples: Merger Agreement (Streamline Health Solutions Inc.)
Absence of Certain Changes or Events. (a) Except for liabilities incurred as disclosed in connection with the Company SEC Documents filed prior to the date of this Agreement Agreement, or the transactions except as contemplated herebyby this Agreement, since January 1December 31, 20001998, the Company and its subsidiaries Material Subsidiaries have conducted their respective businesses business only in the ordinary coursecourse of business consistent with past practice, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any Capital Stock of the Company's capital stock, ; (iiiii) any split, combination combination, reclassification or reclassification amendment of any term of any outstanding Capital Stock or other security of the Company's capital stock Company or any of its Material Subsidiaries or (other than issuance of Common Stock upon the exercise of any Company Options) any issuance or the authorization of any the issuance of any securities of the Company or any of its Material Subsidiaries, other than in connection with the transactions contemplated hereby; (iii) any repurchase, redemption or other acquisition by the Company or any Subsidiary of the Company of any outstanding Capital Stock or other securities in respect of, in lieu of the Company or in substitution for shares any Material Subsidiary of the Company's capital stock, except for issuances of Company Common as contemplated by the Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, Plans; (iv) prior to the date hereof (A) any granting grant by the Company or any of its subsidiaries Subsidiaries to any current or former director, executive officer or other Key Employee of the Company or any of its subsidiaries Material Subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of businessbusiness consistent with past practice or as required under employment or other agreements or benefit arrangements in effect as of December 31, 1998, or (B) any granting grant by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, except as was required or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, provided for under any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current other agreements or former directorbenefit arrangements in effect as of December 31, executive officer or Key Employee, 1998; (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company affecting or any of its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policyMaterial Subsidiaries, (vi) any tax election by material casualties affecting the Company or and its subsidiaries Material Subsidiaries, or any settlement material loss, damage or compromise destruction to any of any income tax liability their properties or assets, whether covered by the Company insurance or its subsidiaries, except not.
(b) Except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than Company's consolidated financial statements included in the ordinary course of business consistent with past practiceCompany 1998 Form 10-K, (viii) and the notes thereto, and except for matters relating to general economic conditions and conditions which affect the oilfield services industry generally, since December 31, 1998, there has not been any transaction event, circumstance or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, fact that (x) any improper subjection has had or could reasonably be expected to have a Material Adverse Effect, (y) has impaired or could reasonably be expected to impair the ability of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do perform its obligations under any of the foregoingTransaction Documents in any material respect, or (z) could reasonably be expected to delay in any material respect or prevent the consummation of any of the transactions contemplated by any of the Transaction Documents.
Appears in 1 contract
Absence of Certain Changes or Events. (a) Except for liabilities incurred as disclosed in connection the SEC Documents filed with the SEC after December 31, 1998 and prior to the date of this Agreement Agreement, or the transactions except as contemplated herebyby this Agreement, since January 1December 31, 20001998, each of the Company and its subsidiaries Subsidiaries have conducted their respective businesses business only in the ordinary coursecourse of business consistent with past practice, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii1) any declaration, setting aside or payment of any dividend or other distribution by the Company (whether in cash, stock or property) with respect to any capital stock of the Company's capital stock, Company or any of its Subsidiaries; (iii2) any split, combination combinations, reclassification or reclassification amendment of any term of any outstanding capital stock or other security of the Company; (3) other than issuance of Common Stock upon the exercise of outstanding options to purchase Common Stock granted under the Company's capital director and employee stock or incentive plans disclosed in the SEC Documents, any issuance or the authorization of any the issuance of any equity securities of the Company or any of its Subsidiaries, other than in connection with the transactions contemplated hereby; (4) any repurchase, redemption or other acquisition by the Company or any Subsidiary of the Company of any outstanding capital stock or other securities in respect of, in lieu of the Company or in substitution for shares any Subsidiary of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ; (iv5) prior to the date hereof (A) any granting grant by the Company or any of its subsidiaries Subsidiaries to any current or former director, executive officer or other Key Employee of the Company or any of its subsidiaries Subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, business consistent with past practice or (B) any granting grant by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, except as was required or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, provided for under any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current other agreements or former directorbenefit arrangements in effect as of December 31, executive officer or Key Employee, 1998; (v6) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions)methods, principles or practices by the Company or any of its Subsidiaries; or (7) any material casualties affecting the Company and its Subsidiaries, taken as a whole, or any material loss, damage or destruction to any of their properties or assets, liabilities whether covered by insurance or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, not.
(vib) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except Except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than Company's consolidated financial statements included in the ordinary course of business consistent with past practiceCompany's Annual Report on Form 10-K for the year ended December 31, (viii) 1998, and the notes thereto since December 31, 1998, there has not been any transaction event, circumstance or commitment, fact that has had or series of related transactions or commitments, could reasonably be expected to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoinghave a Material Adverse Effect.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as disclosed on Schedule 3.08 or as contemplated by this Agreement or the transactions contemplated herebyAgreement, since January 1the Reference Balance Sheet Date, 2000, each of the Company and the Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses business only in the ordinary courseOrdinary Course of Business, and during such period there has not been (i) the occurrence of an event that could reasonably be expected with respect to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company or such Company Subsidiary any:
(a) event, change, effect, occurrence, development or state of circumstances or facts that, individually or in the aggregate, has had or could have a manner which is not proportionate with Material Adverse Effect;
(b) amendment or other change in the effect Company Charter or Company By-laws or the organizational documents of such changes on similarly situated companies, any Company Subsidiary;
(iic) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of Stock of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock Company or any issuance Company Subsidiary, or the authorization of any issuance of any repurchase, redemption or other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting acquisition by the Company or any Company Subsidiary of its subsidiaries to any current or former director, executive officer outstanding shares of Stock or other Key Employee securities of the Company or its subsidiaries any Company Subsidiary;
(d) amendment of any increase material term of any outstanding security of the Company or any Company Subsidiary;
(e) making of any loan, advance or capital contributions to or investment in compensationany Person;
(f) (i) material damage, bonus destruction or other benefitsmaterial casualty loss (whether or not covered by insurance) affecting the business or assets of, except for increases in the ordinary course of businessor property owned, (B) any granting leased or otherwise used by the Company or any Company Subsidiaries, (ii) sale (except for inventory in the Ordinary Course of its subsidiaries to Business) lease, alteration or other disposition of, or write down of the book value of (except under accounting practices and principles applied for amortization and depreciation thereof for the period ending on the date of the Reference Balance Sheet Date) any such current material asset of the Company or former directorany Company Subsidiary which has a book value in excess of $200,000 or any items of property, executive officer plant and equipment which in the aggregate has a book value in excess of $500,000, (iii) mortgage, pledge or Key Employee imposition of any increase in severance Lien upon any material asset of the Company or termination payany Company Subsidiary, or (Civ) sale or other disposition of, or termination, lapse or other expiration of, the rights to the use of any of the material Company Intellectual Property;
(g) entry into, amendment to, termination of, or receipt of notice of termination of any contract involving the commitment of the Company or any Company Subsidiary extending for more than one year and involving a total remaining commitment by the Company or any Company Subsidiary of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, at least $200,000;
(vh) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries any Company Subsidiary in Tax or accounting principles, methods or practices;
(i) capital expenditure, or commitment for a capital expenditure in excess of $250,000 individually or $500,000 in the aggregate, for additions or improvements to property, plant and equipment of the Company or any Company Subsidiaries;
(j) (i) cancellation or waiver of any claims or rights with a value to the Company or any Company Subsidiary in excess of $250,000 or (ii) settlement or compromise of any income tax liability material actions, other than such actions in which the amount paid in settlement or comprise, including the cost to the Company and each Company Subsidiary of complying with any provisions of such settlement or compromise other than cash payments, does not exceed $250,000 without regard to any amount covered by insurance;
(k) effectuation of (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the business of the Company or any Company Subsidiary or (ii) a “mass layoff” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facilities of the business of the Company or any Company Subsidiary, except, in either case, after fully complying with the notice and other requirements of the WARN Act or any notification of or effectuation of a collective dismissal or plant closing under any applicable foreign Law; or
(l) agreement (whether written or oral) by the Company or its subsidiaries, except as would not be required to be disclosed in the any Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) Subsidiary to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with this Agreement or the transactions contemplated herebyFiled Company SEC Documents, since January 1October 31, 20002003 through the date of this Agreement, (i) the Company and its subsidiaries have conducted their respective businesses only businesses, in all material respects, in the ordinary course, course consistent with past practice and (ii) there has not been (iA) any change, development, effect or condition that, individually or in the occurrence of an event that could aggregate, constitutes, has had, or is reasonably be expected likely to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the have a Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesMaterial Adverse Effect, (iiB) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's or any of its subsidiaries' capital stockstock except for dividends by a wholly owned subsidiary of the Company to its parent, (iiiC) any purchase, redemption or other acquisition by the Company or its subsidiaries of any shares of capital stock or any other securities of the Company or any of its subsidiaries or any options, warrants or rights to acquire such shares or other securities, (D) any split, combination or reclassification of any of the Company's or any of its subsidiaries' capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock or other securities of the Company's capital stockCompany or any of its subsidiaries, except for issuances the issuance of Company Common Stock (and associated Rights) upon the exercise of Company Stock Options or Company Warrantsoutstanding on June 16, in each case awarded prior to the date hereof 2004 and in accordance with their present termsterms as in effect on such date, (ivE) prior amendment or authorization to amend the date hereof certificate of incorporation or by-laws (Aor similar organizational documents) of the Company or any of its subsidiaries, (F) any granting material change in accounting methods, principles or practices by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefitssubsidiaries, except for increases insofar as may have been required by a change in the ordinary course of businessGAAP or applicable law, (BG) any granting material election with respect to taxes by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income material tax liability or refund or (H) any revaluation by the Company or any of its subsidiaries of any of the material assets of the Company and its subsidiaries, except taken as would not be required to be disclosed a whole. Except as set forth in the Filed Company SEC Documents, since October 31, 2003 through the date of this Agreement, the Company and its subsidiaries have not (vii1) acquired, or agreed to acquire, (x) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by any other manner, any assets constituting a business or any corporation, partnership, limited liability company, joint venture or association or other entity or division thereof, or any direct or indirect interest in any of the foregoing, or (y) any assets that are material insurance transaction to the Company and its subsidiaries, taken as a whole, other than inventory acquired in the ordinary course of business consistent with past practice, (viii2) directly or indirectly sold, leased, licensed, sold and leasedback, mortgaged or otherwise encumbered or subjected to any transaction Lien or commitmentotherwise disposed of any of their properties or assets or any interest therein that are material to the Company and its subsidiaries, taken as a whole, except sales of inventory in the ordinary course of business consistent with past practice or (3) (A) entered into, modified, amended or terminated any Contract that is material to the Company and its subsidiaries, taken as a whole, or series of related transactions (B) sold, transferred or commitments, licensed to acquire real estate for VOI development in excess of $1,000,000 (ix) any person any material labor trouble or claim rights to the Intellectual Property of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingand its subsidiaries, taken as a whole.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with (i) From December 31, 2005 to the date of this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and its subsidiaries Subsidiaries have conducted their respective businesses only in the ordinary course, course consistent with past practice and there has not been (iA) any Material Adverse Effect or any state of facts, change, development, event, effect, condition or occurrence that, individually or in the occurrence of an event that could aggregate, has had or is reasonably be expected likely to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in have a manner which is not proportionate with the effect of such changes on similarly situated companiesMaterial Adverse Effect, (iiB) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s or any of its Subsidiaries’ capital stockstock or other equity or voting interests, except for dividends by a direct or indirect wholly owned Subsidiary of the Company to its parent, (iiiC) any split, combination or reclassification of any of the Company's ’s or any of its Subsidiaries’ capital stock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company's capital stock, except for issuances Company or any of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termsits Subsidiaries, (iv) prior to the date hereof (AD)(1) any granting grant by the Company or any of its subsidiaries Subsidiaries to any current or former director, executive officer or other Key Employee employee of the Company or any of its subsidiaries Subsidiaries or any individual providing services as an independent contractor or consultant to the Company or any of its Subsidiaries (collectively, “Company Personnel”) of any bonus opportunity, any loan or any increase in compensation, bonus any type of compensation or other benefits, except for grants of normal bonus opportunities and normal increases of compensation or benefits, in each case, prior to the date of this Agreement in the ordinary course of businessbusiness consistent with past practice, or (B2) any granting payment by the Company or any of its subsidiaries Subsidiaries to any such current or former director, executive officer or Key Employee Company Personnel of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesbonus, except as would not be required for bonuses paid or accrued prior to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than date of this Agreement in the ordinary course of business consistent with past practice, (viiiE) any transaction grant by the Company or commitmentany of its Subsidiaries to any current director or officer of the Company or any of its Subsidiaries of any severance, change in control, termination or similar compensation or benefits or increases therein or of the right to receive any severance, change in control, termination or similar compensation or benefits or increases therein or any grant by the Company or any of its Subsidiaries to any other Company Personnel of any material severance, change in control, termination or similar compensation or benefits or material increases therein or of the right to receive any material severance, change in control, termination or similar compensation or benefits or material increases therein, (F) any adoption of or entry by the Company or any of its Subsidiaries into, any material amendment of or modification to or agreement to materially amend or modify, or series any termination of, (1) any employment, deferred compensation, change in control, severance, termination, loan, indemnification, retention, stock repurchase or similar Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, or any consulting Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel who is a current or former director, officer or employee of the Company or any of its Subsidiaries, on the other hand, (2) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement or (3) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any compensation or benefit to be provided to any Company Personnel (all such Contracts under this clause (F), collectively, “Benefit Agreements”), (G) any grant or amendment of any incentive award (including stock options, stock appreciation rights, performance units, restricted stock, stock repurchase rights or other stock-based or stock-related transactions awards) or commitmentsthe removal or modification of any restrictions in any such award, to acquire real estate for VOI development (H) any change in excess financial or Tax accounting methods, principles or practices by the Company or any of $1,000,000 its Subsidiaries, except insofar as may have been required by GAAP or applicable Law, (ixI) any material labor trouble Tax election or claim change in any material Tax election or any settlement or compromise of wrongful discharge or other unlawful labor practice or actionany material income Tax liability, (xJ) any improper subjection of VOI inventory material write-down by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do of its Subsidiaries of any of the foregoingmaterial assets of the Company or any of its Subsidiaries, or (K) any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property or rights thereto, other than nonexclusive licenses granted in the ordinary course of the business of the Company and its Subsidiaries consistent with past practice.
(ii) Since December 31, 2005, each of the Company and its Subsidiaries has continued all pricing, sales, receivables and payables practices in accordance with the ordinary course of business consistent with past practice and has not engaged, except in the ordinary course of business consistent with past practice, in (A) any promotional sales or discount activity with any customers or distributors with the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected to occur in subsequent fiscal quarters, (B) any practice that would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected to be made in subsequent fiscal quarters, (C) any practice that would have the effect of postponing to subsequent fiscal quarters payments by the Company or any of its Subsidiaries that would otherwise be expected to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity.
Appears in 1 contract
Samples: Merger Agreement (Filenet Corp)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since September 5, 2001 (the transactions contemplated hereby, since January 1, 2000"Company Balance Sheet Date"), the Company and has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, course consistent with past practice and there has not been occurred: (i) the occurrence of an any change, event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in in, a Company Material Adverse Effect; (ii) any acquisition, sale or transfer of any material adverse effect on asset or material amount of assets of the Company; (iii) any change in accounting methods or practices (including any change in depreciation, except for an effect due to changes affecting the economy amortization or financial markets generally other than such changes which affect revenue recognition policies or rates) by the Company in a manner which is not proportionate with or any revaluation by the effect Company of such changes on similarly situated companies, any of its assets; (iiiv) any declaration, setting aside aside, or payment of any a dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's , or any direct or indirect redemption, purchase or other acquisition by the Company of any of its shares of capital stock, except for issuances repurchases of Company Common Stock upon its capital stock pursuant to agreements with the exercise of Company Stock Options or Company Warrants, Company's employees and consultants in each case awarded effect prior to the date hereof in accordance with their present terms, (iv) prior commencement of discussions between the Company and Parent relating to the date hereof transactions contemplated by this Agreement; (Av) any granting material contract entered into by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries intoCompany, or any material amendment or termination of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAPdefault under, any material change in accounting methods (or underlying assumptions), principles or practices by contract to which the Company affecting its assets, liabilities is a party or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, by which it is bound; (vi) any tax election by amendment or change to the Company Certificate of Incorporation or its subsidiaries or any settlement or compromise Bylaws of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, Company; (vii) any material insurance transaction other than increase in or modification of the ordinary course compensation or benefits payable or to become payable by the Company to any of business consistent with past practiceits directors, employees or consultants, or (viii) any transaction or commitment, agreement or series Board of related transactions Directors or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory stockholder resolution by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do take any of the foregoingactions described in the preceding clauses (ii) through (vii) (other than with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Ask Jeeves Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebyas set forth on Schedule ------------------------------------ -------- 4.8, since January 1the date of the Latest Balance Sheet, 2000, each of the Company and the --- Company Subsidiaries has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse consistent with past custom and practices. Except as set forth on Schedule 4.8, and since the date of the ------------ Latest Balance Sheet, there has not been any:
(ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on change in the Companyoperations, except for an effect due to changes affecting the economy condition (financial or financial markets generally other than such changes which affect otherwise), operating results, assets, liabilities, employee, customer or supplier relations or business prospects of the Company in a manner which is not proportionate with the effect of such changes on similarly situated companiesor any Company Subsidiary;
(b) damage, (ii) any declaration, setting aside destruction or payment loss of any dividend property owned or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting leased by the Company or any Company Subsidiary, whether or not covered by insurance, having a replacement cost or fair market value in excess of its subsidiaries to any current $50,000.00 in the aggregate;
(c) voluntary or former directorinvoluntary sale, executive officer transfer, surrender, cancellation, abandonment, waiver, release or other Key Employee disposition of any kind by the Company or its subsidiaries any Company Subsidiary of any increase right, power, claim, debt, asset or property (having a replacement cost or fair market value in compensation, bonus or other benefitsexcess of $50,000.00 in the aggregate), except for increases in the ordinary course of businessbusiness consistent with past custom and practices;
(d) strike, picketing, boycott, work stoppage, union organizational activity, allegation, charge, written complaint of employment discrimination or other labor dispute or similar occurrence that might reasonably be expected to adversely affect the Company, a Company Subsidiary or the Business;
(Be) any granting loan or advance by the Company or any of its subsidiaries Company Subsidiary to any such current or former directorperson, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practicecustom and practices and travel and other business-related advances to employees of the Company and Company Subsidiaries in the ordinary course of business;
(f) notice (formal or otherwise) of any liability, potential liability or claimed liability relating to environmental matters;
(viiig) declaration, setting aside, or payment of any transaction dividend or other distribution in respect of the Company's or a Company Subsidiary's capital stock or any direct or indirect redemption, purchase, or other acquisition of the Company's or any Company Subsidiary's capital stock, or the payment of principal or interest on any note, bond, debt instrument or debt to any Affiliate of the Company or any Company Subsidiary;
(h) incurrence by the Company or any Company Subsidiary of debts, liabilities or obligations except current liabilities incurred in connection with or for services rendered or goods supplied in the ordinary course of business consistent with past custom and practices, liabilities on account of taxes and governmental charges (but not penalties, interest or fines in respect thereof), and obligations or liabilities incurred by virtue of the execution of this Agreement;
(i) issuance by the Company or any Company Subsidiary of any notes, bonds, or other debt securities or any equity securities or securities convertible into or exchangeable for any equity securities;
(j) entry by the Company or any Company Subsidiary into, or material amendment or termination of, any material commitment, contract, agreement, or series transaction, other than in the ordinary course of related transactions or commitmentsbusiness and other than expiration of contracts in accordance with their terms;
(k) loss or, to acquire real estate the knowledge of the Stockholders or the Company, threatened loss of, or any material reduction or, to the knowledge of the Stockholders or the Company, threatened material reduction in revenues from, any client of the Company or any Company Subsidiary who accounted for VOI development revenues during the last twelve months in excess of $1,000,000 250,000.00, or change in the relationship of the Company or any Company Subsidiary with any client or Governmental Authority which might reasonably be expected to materially and adversely affect the Company, any Company Subsidiary or the Business;
(ixl) change in accounting principles, methods or practices (including, without limitation, any material labor trouble change in depreciation or claim of wrongful discharge amortization policies or other unlawful labor practice or action, (xrates) any improper subjection of VOI inventory utilized by the Company or any Company Subsidiary;
(m) discharge or satisfaction by the Company or any Company Subsidiary of any material liability or encumbrance or payment by the Company or any Company Subsidiary of any material obligation or liability, other than current liabilities paid in its ordinary course of business consistent with past custom and practices;
(n) sale, lease or other disposition by the Company or any Company Subsidiary of any tangible assets other than in the ordinary course of business, or sale, assignment or transfer by the Company or any Company Subsidiary of any trademarks, service marks, trade names, corporate names, copyright registrations, trade secrets or other intangible assets or disclosure of any proprietary confidential information of the Company or any Company Subsidiary to any person other than Compass, and the FairShare Program other Founding Companies and their respective officers, employees and agents;
(o) capital expenditures or commitments therefor by the Company or any Company Subsidiary in excess of $50,000.00 individually or $100,000.00 in the aggregate;
(xip) mortgage, pledge or other encumbrance of any agreement asset of the Company or commitment (contingent any Company Subsidiary or otherwise) to do creation of any easements, Liens or other interests against or on any of the foregoingReal Property (hereinafter defined);
(q) adoption, amendment or termination of any Employee Plan (hereinafter defined) or increase in the benefits provided under any Employee Plan, or promise or commitment to undertake any of the foregoing in the future; or
(r) an occurrence or event not included in clauses (a) through (q) that has resulted or is expected to result in a material adverse effect on the business, operations, property, assets, condition (financial or otherwise), operating results, liabilities, employee, customer or supplier relations or business prospects of the Company or any Company Subsidiary (a "Company Material Adverse Effect").
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass International Services Corp)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with the Company SEC Documents filed and publicly available prior to the date of this Agreement (the "Filed Company SEC Documents") or in Section 3.08 of the transactions contemplated herebyCompany Disclosure Letter, since January 1December 31, 20001999, the Company and has conducted its subsidiaries have conducted their respective businesses business only in the ordinary coursecourse of business, and there has not been been:
(ia) any event, change, occurrence, effect or development that, individually or in the occurrence of an event that aggregate, has had or could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the have a Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect;
(iib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock stock, property or propertyotherwise) with respect to any Company capital stock or any repurchase, redemption or other acquisition by the Company of any capital stock or other equity securities of, or other ownership interests in, the Company's capital stock, ;
(iiic) any split, combination or reclassification of any of the Company's Company capital stock or any issuance of or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for for, shares of the Company's Company capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, ;
(ivd) prior to the date hereof (Ai) any granting grant by the Company or any of its subsidiaries to any current director or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (Bii) any granting grant by the Company or any of its subsidiaries to any such current director or former director, executive officer or Key Employee of any increase in severance severance, change of control or termination paypay benefits, or (Ciii) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, consulting, deferred compensation, consultingindemnification, severance, change of control or termination agreement or indemnification agreement arrangement with any such current director or former directorofficer;
(e) any change in accounting methods, executive officer principles or Key Employeepractices by the Company, (v) except insofar for such changes as may have been disclosed in Company SEC Documents or required by a change in GAAP;
(f) any (i) material elections with respect to Taxes by the Company, any material change in accounting methods (ii) settlement or underlying assumptions), principles or practices compromise by the Company affecting its assets, liabilities of any material Tax liability or business, including, without limitation, refund or (iii) assessment of a material Tax or Royalty against the Company by any reserving, renewal or residual method, or estimate of practice or policy, Governmental Entity;
(vig) any tax election amendment of any term of any outstanding security of the Company that would materially increase the obligations of the Company under such security;
(h) any incurrence, assumption or guarantee by the Company or its subsidiaries or any settlement or compromise of any income tax liability indebtedness for borrowed money;
(i) any creation or assumption by the Company of any Lien on any asset of the Company;
(j) any making of any loan, advance or its subsidiariescapital contribution to or investment in any person by the Company other than (i) in connection with any acquisition or capital expenditure permitted by Section 5.01, except as would not be required or (ii) loans or advances to be disclosed employees of the Company made in the ordinary course of business;
(i) any acquisition by the Company SEC Documentsby merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or any acquisition by the Company of any assets (other than inventory) that are material to the Company, (viiii) any sale, lease, license, encumbrance or other disposition of material insurance transaction assets of the Company, other than sales of products to customers in the ordinary course of business, (iii) any incurrence of capital expenditures by the Company other than in the ordinary course of business consistent with past practicebusiness, or (viiiiv) any transaction modification, amendment, assignment, termination or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory relinquishment by the Company of any Contract, license or other right that, individually or in the aggregate with all such modifications, amendments, assignments, terminations and relinquishments, has had or could reasonably be expected to have a Company Material Adverse Effect;
(l) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of the Company that, individually or in the aggregate, has had or could reasonably be expected to have a Company Material Adverse Effect;
(m) any entry by the Company into any commitment or transaction material to the FairShare Program Company (other than commitments or transactions entered into in the ordinary course of business);
(xin) as of the date hereof, any revaluation by the Company of any of its material assets, including but not limited to writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; or
(o) any agreement agreement, commitment or commitment (contingent or otherwiseundertaking to take any action referred to in Sections 3.08(a) to do any of the foregoingthrough 3.08(n).
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or Since the transactions contemplated hereby, since January 1, 2000Balance Sheet Date, the Company and its subsidiaries the Company Subsidiaries have conducted their respective businesses only in the ordinary course, course and in a manner consistent with past practice and there has not been any:
(ia) change in the occurrence financial condition, results of an event that could reasonably be expected operations or business of the Company or any Company Subsidiary having, in the aggregate, a Company Material Adverse Effect;
(b) damage, destruction or loss (whether or not covered by insurance) with respect to result any assets of the Company or any Company Subsidiary or their businesses causing, in the aggregate, a Company Material Adverse Effect;
(c) change by the Company or any Company Subsidiary in its accounting methods, principles or practices;
(d) revaluation by the Company or any Company Subsidiary of any of their respective assets in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, respect;
(iie) any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Company Stock or any redemption, purchase or other distribution acquisition of any securities of the Company or any Company Subsidiary, except as set forth in Section 2.3, above;
(whether f) stock split, reclassification, subdivision, exchange or any other change in cashthe Company’s authorized or issued capital stock, grant of any stock option or propertyright to purchase shares of Company Stock or issuance of any Company Stock or security convertible into Company Stock, grant of any registration rights, purchase, redemption, retirement, or other acquisition by the Company of any shares of any Company Stock, except as set forth in Section 2.3, above;
(g) amendment to the Articles of Incorporation or By-Laws of the Company or any Company Subsidiary;
(h) any (i) grant of severance or termination pay (unless required by law) to any director, officer, or employee of the Company or any Company Subsidiary, (ii) entry into any employment, deferred compensation (based upon the meaning of such term prior to the adoption of Code Section 409A), or other similar agreement (or any material amendment to any such existing agreement) with respect to any director, officer, or employee of the Company's capital stockCompany or any Company Subsidiary, (iii) increase in benefits payable under any splitexisting severance or termination pay policies or employment agreements, combination (iv) increase in compensation, bonus, or reclassification other benefits payable to directors, officers, or employees of the Company or any Company Subsidiary, in each case other than those required by written contractual agreements or in the aggregate to any individual in an amount not to exceed $75,000, (v) adoption of, or any increase in the payments to or benefits under any Company Plan; or (v) acceleration of, or amendment or change to, the period of exercisability, vesting, or exercise price of options, restricted stock, stock bonus, or other awards granted under any Company Plan or authorization of cash payments in exchange for any options, restricted stock, stock bonus, or other awards granted under any of such plans except, in each case, as carried out in the ordinary course or otherwise required under applicable law or the existing terms of Company Plans or agreements;
(i) entry into, termination of, or receipt of notice of termination of (i) any license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any contract or transaction involving a total remaining commitment by or to the Company or any Company Subsidiary of at least Twenty-Five Thousand Dollars ($25,000), except purchases of inventory and sales of goods and services in the ordinary course of business;
(j) sale (other than sales in the ordinary course of business), lease, or other disposition of any asset or property of the Company or any Company Subsidiary or mortgage, pledge, or imposition of any Lien on any material asset or property of the Company or any Company Subsidiary, including the sale, lease, or other disposition of any of the Company's capital stock Intellectual Property Rights, except sales of assets or property of the Company or any issuance Company Subsidiary with a fair market value of less than Twenty-Five Thousand Dollars ($25,000) in connection with capital replacement in the ordinary course of business;
(k) cancellation or the authorization waiver of any issuance debts, claims or rights with a value to the Company or any Company Subsidiary in excess of Twenty-Five Thousand Dollars ($25,000);
(l) any incurrence, assumption, or guarantee by the Company or any Company Subsidiary of any other securities indebtedness for borrowed money;
(m) a material change to any tax election or any settlement or consent to any claim or assessment relating to taxes incurred, or any incurrence of any obligation to make any payment of, or in respect of, in lieu of or in substitution for shares of the Company's capital stockany taxes, except in the ordinary course of business, or agreement to extend or waive the statutory period of limitations for issuances the assessment or collection of taxes;
(n) any entry by the Company Common Stock upon the exercise of or any Company Stock Options Subsidiary into any joint venture, partnership, or Company Warrants, in each case awarded prior to the date hereof in accordance limited liability company or operating agreement with their present terms, any Person;
(iv) prior to the date hereof (Ao) any granting by the Company or any Company Subsidiary of its subsidiaries to a Lien on any current material property or former director, executive officer or other Key Employee assets of the Company or its subsidiaries of any increase in compensationCompany Subsidiary; or
(p) agreement, bonus whether oral or other benefitswritten, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) Subsidiary to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Labor Ready Inc)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with Schedule 2.9 hereto or in the Unaudited Financial Statements, or as otherwise provided in this Agreement or the transactions contemplated herebyAgreement, since January 1September 30, 20002005, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's ’s stock, or any purchase, redemption or other acquisition by the Company of any of the Company’s capital stockstock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's ’s capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by Company 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 the Company of the nature contemplated hereby, (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 2.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, (vii) any change in the auditors of the Company, (viii) any transaction or commitmentissuance of capital stock of the Company, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or claim writing off notes or accounts receivable or any sale of wrongful discharge assets of the Company other than in the ordinary course of business, or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program agreement, whether written or (xi) any agreement or commitment (contingent or otherwise) oral, to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mercator Partners Acquisition Corp.)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or as set forth on Section 3.8 of the transactions contemplated herebyCompany Schedule of Exceptions, since January 1December 31, 20002011 and except as expressly contemplated by this Agreement, the Company and each Subsidiary has conducted its subsidiaries have conducted their respective businesses only business in the ordinary course, course consistent with past practice and there has not been (ia) the any change, event or occurrence of an event that could which has had or would reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the have a Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, Material Adverse Effect; (iib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock stock, property or property) with otherwise in respect to any of the Company's ’s capital stock, ; (iiic) any splitredemption, combination repurchase or reclassification other acquisition of any shares of capital stock of the Company's capital stock Company (other than in connection with the forfeiture or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of equity based awards, Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present existing agreements or terms, ); (iv) prior to the date hereof (Ad) any granting by the Company or to any of its subsidiaries to any current directors, officers or former director, executive officer or other Key Employee of the Company or its subsidiaries employees of any material increase in compensation, bonus compensation or other benefits, except for increases in the ordinary course of business, business consistent with past practice or that are required under any Company Plan (Bas hereinafter defined); (e) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee employee of the right to receive any increase in severance or termination pay, or ; (Cf) any entry by the Company or any of its subsidiaries intoSubsidiaries into any employment, consulting, indemnification, termination, change of control or severance agreement or arrangement with any present or former director, officer or employee of the Company, or any amendment ofto or adoption of any Company Plan or collective bargaining agreement; (g) any material change by the Company or any of its Subsidiaries in its accounting principles, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed be required to conform to changes in Company SEC Documents statutory or required by a change in GAAP, regulatory accounting rules or GAAP or regulatory requirements with respect thereto; (h) any material change in a tax accounting methods (period or underlying assumptions)method or settlement of a material Tax claim or assessment, principles or practices by the Company affecting its assetsin each case, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by relating to the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any a Subsidiary of the foregoingCompany, unless required by GAAP or applicable Law.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with the Company SEC Reports filed prior to the date of this Agreement or the transactions Agreement, and except as contemplated herebyby this Agreement, since January 1June 30, 20002005, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with in respect to of, any of the Company's capital stock, or any purchase, redemption or other acquisition by the Company of any of the Company's capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such shares or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by the Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by the Company of any increase in severance or termination pay or any entry by the Company 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 the Company of the nature contemplated hereby, (v) entry by the Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by the Company with respect to any Governmental Entity, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP, (vii) any change in the auditors of the Company, (vii) any issuance of capital stock of the Company, or (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory revaluation by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do of any of their respective assets, including, without limitation, writing down the foregoingvalue of capitalized inventory or writing off notes or accounts receivable or any sale of assets of the Company other than in the ordinary course of business.
Appears in 1 contract
Samples: Merger Agreement (Wentworth I Inc)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as set forth on Schedule 3.26 or as otherwise contemplated by this Agreement or the transactions contemplated herebyAgreement, since January 1December 31, 20002003, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been (ia) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Companydamage, except for an effect due to changes affecting the economy destruction or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior casualty loss to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by physical properties of the Company or any of its subsidiaries the Retained Subsidiaries or to the physical properties of any current third parties that are located on the Company's or former director, executive officer or other Key Employee any of the Company Retained Subsidiaries' premises or its subsidiaries within the Company's or any of any increase in compensation, bonus the Subsidiaries' control (whether or other benefits, except for increases in the ordinary course of businessnot covered by insurance), (Bb) a Material Adverse Effect, (c) any granting by entry into any Contract material to the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiariesRetained Subsidiaries, except as would not be required to be disclosed in the Company SEC Documentstransactions, (vii) any material insurance transaction other than commitments or agreements in the ordinary course of business consistent with past practice, (viiid) any transaction declaration, setting aside or commitmentpayment of any distribution in cash, stock or property with respect to the membership or other equity interest of the Company, any repurchase, redemption or other acquisition by the Company of any membership interest, equity interest or other securities, or series of related transactions any agreement, arrangement or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory commitment by the Company to the FairShare Program or do so except as allowed under this Agreement, (xie) any agreement increase that is material in the compensation payable or commitment (contingent to become payable by the Company or otherwise) to do any of the foregoingRetained Subsidiaries to their managers, officers, employees or agents or any increase in the rate or terms of any bonus, pension or other employee benefit plan, payment or arrangement made to, for or with any such managers, officers, employees or agents, (f) any sale, transfer or other disposition of, or the creation of any Lien upon, any material part of the Assets, except for sales of inventory and use of supplies and collections of accounts receivables in the ordinary course of business consistent with past practice, or any cancellation or forgiveness of any material debts or claims by the Company or any of the Retained Subsidiaries, (g) any material change in the relations of the Company or any of the Retained Subsidiaries with or material loss of its customers or suppliers, or any material loss of business or material increase in the cost of inventory items or material change in the terms offered to customers, or (h) any capital expenditure (including any capital leases) or commitment therefor by the Company or any of the Retained Subsidiaries except in the ordinary course of business consistent with past practice.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sonoco Products Co)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with the Company Disclosure Letter, from March 31, 2013 to the date of this Agreement or the transactions contemplated hereby, since January 1, 2000Agreement, the Company and has conducted its subsidiaries have conducted their respective businesses business only in the ordinary course, and during such period there has not been been:
(i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (iia) any declarationchange in the assets, setting aside liabilities, financial condition or payment operating results of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefitsSubsidiary, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than changes in the ordinary course of business consistent with past practicethat have not caused, in the aggregate, a Company Material Adverse Effect;
(viiib) any transaction damage, destruction or commitmentloss, whether or not covered by insurance, that would have a Company Material Adverse Effect;
(c) any waiver or compromise by the Company or any Company Subsidiary of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or series encumbrance or payment of related transactions any obligation by the Company or commitmentsany Company Subsidiary, to acquire real estate for VOI development except in excess the ordinary course of $1,000,000 business and the satisfaction or discharge of which would not have a Company Material Adverse Effect;
(ixe) any material labor trouble change to a material Contract by which the Company or claim any Company Subsidiary or any of wrongful discharge its respective assets is bound or other unlawful labor practice or action, subject;
(xf) any improper subjection mortgage, pledge, transfer of VOI inventory a security interest in, or lien, created by the Company or any Company Subsidiary, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair the Company’s or any Company Subsidiary’s ownership or use of such property or assets;
(g) any loans or guarantees made by the Company or any Company 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 ordinary course of its business;
(h) any alteration of the Company’s method of accounting or the identity of its auditors;
(i) any declaration or payment of dividend or distribution of cash or other property to the FairShare Program Shareholder or any purchase, redemption or agreements to purchase, redeem or retract any Company Shares;
(xij) any agreement issuance of equity securities to any officer, director or affiliate except pursuant to existing Company Shares option plans; or
(k) any arrangement or commitment (contingent by the Company or otherwise) any Company Subsidiary to do any of the foregoingthings described in this Section 3.23.
Appears in 1 contract
Samples: Share Exchange Agreement (WMX Group Holdings, Inc.)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with as permitted by this Agreement or the transactions contemplated herebyconsented to hereunder, since January 1December 30, 20002006, (i) the Company and its subsidiaries the Company Subsidiaries have not incurred any Liability that is material to the Company and the Company Subsidiaries taken as a whole, except in the Ordinary Course of Business and which are not reasonably likely to have, individually or aggregate, a Company Material Adverse Effect; (ii) there has not been any event or occurrence which has had or reasonably would be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (iii) the Company and the Company Subsidiaries have conducted their respective businesses only in the ordinary course, and Ordinary Course of Business; (iv) there has not been (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares of capital stock of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance repurchase, redemption or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting acquisition by the Company or any of its subsidiaries to the Company Subsidiaries of any current or former director, executive officer outstanding shares of capital stock or other Key Employee securities of, or other ownership interests in, the Company or any of Subsidiaries; and (v) except as disclosed in Section 5.7 of the Company or its subsidiaries Disclosure Memorandum, there has not been any (A) grant of any severance or termination pay to any director or officer of the Company, (B) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director or officer of the Company, (C) increase in benefits payable under any existing severance or termination pay policies or (D) increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company benefits payable to directors or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any officers of the foregoingCompany.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred Since December 31, 2004, and except as disclosed in connection with this Agreement or the transactions contemplated hereby, since January 1, 2000Schedule 3.7, the Company and its subsidiaries have conducted their respective businesses only Business has been operated in the ordinary course, course and there has not been any:
(ia) sale, assignment or transfer, other than in the occurrence ordinary course of an event that could reasonably be expected to result in business and consistent with past practice, of any assets of the Company;
(b) acquisition by merger, consolidation with, purchase of substantially all of the assets or capital stock of, or any other acquisition of any material adverse effect on assets or business of, any corporation, partnership, association or other business organization or division thereof;
(c) change in accounting methods or practices by the Company;
(d) entry into, or termination, amendment or modification of, any Material Contract, Permit or material transaction (including, without limitation, any borrowing, capital expenditure, capital contribution, capital financing or factoring agreement);
(e) increase in salary, bonuses or other compensation payable or to become payable to any officer or employee of the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, consistent with past practice, and Company has not (Bi) entered into any granting Benefit Plan or Benefit Agreement, employment, severance, or other agreements relating to compensation or fringe benefits, (ii) adopted or changed any existing Benefit Plan or Benefit Arrangement or (iii) advanced or loaned any money to any officer or employee of the Company;
(f) strike, walkout, labor trouble or threat thereof, or any other new or continued event, development or condition of any character which has or could materially adversely affect the Business;
(g) cancellation or waiver of any right material to the operation of the Business or any cancellation or waiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any officer, manager or employee of the Company;
(h) payment, discharge or satisfaction of any liability or obligation (whether accrued, absolute, contingent or otherwise), other than the scheduled payment, discharge or satisfaction, in the ordinary course of business, of liabilities or obligations shown or reflected on the Financial Statements or incurred in the ordinary course of business since December 31, 2004;
(i) adverse change, or, to the best of the Seller’s knowledge threat of any adverse change, in the Company’s relations with, or any loss, or, to the best of the Seller’s knowledge, threat of loss of, the Company’s landlords, suppliers, clients or customers which, individually or in the aggregate, has been or could be materially adverse to the Company;
(j) write-offs as uncollectible of any notes owed to the Company or accounts receivable of the Company or write-downs of the value of any asset or inventory by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in immaterial amounts or in the ordinary course of business consistent with past practicepractice and at a rate no greater than the rate applicable during the twelve months ended on December 31, 2004;
(viiik) any transaction creation, incurrence, assumption or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory guarantee by the Company of any material obligations or liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due), except in the FairShare Program ordinary course of business, or any creation, incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money;
(xil) any damage, destruction or loss that has, or could reasonably be expected to, materially and adversely affected the Facility or the Business; or
(m) agreement by the Company or commitment (contingent or otherwise) the Seller to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Macquarie Infrastructure CO LLC)
Absence of Certain Changes or Events. Except for liabilities incurred in connection with this Agreement or the transactions contemplated herebySince September 30, since January 1, 20002005, the Company and has conducted its subsidiaries have conducted their respective businesses only business in the ordinary coursecourse of business consistent with past practice, and there has not been (i) any change, condition, event or occurrence that, individually or in the occurrence of an event that could aggregate, has had, or would reasonably be expected to result in have, a Company Material Adverse Effect. Without limiting the generality of the foregoing, since that date, there has not been:
(a) any labor dispute that has had or would reasonably be expected to have a Company Material Adverse Effect;
(b) any material adverse effect on change in the accounting policies or practices or Tax methods or procedures of the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, ;
(iic) any declarationdamage, setting aside destruction or payment of loss, whether covered by insurance or not, that has had or would reasonably be expected to have a Company Material Adverse Effect;
(d) any dividend new, or other distribution (whether amendment to any existing, employment, severance or consulting Contract, the implementation of, or any agreement to implement, any material increase in cash, stock or property) benefits with respect to any of the Company's capital stockBenefit Plans, (iii) or any split, combination or reclassification material alteration of any of the Company's capital stock ’s employment practices or any issuance or the authorization terms and conditions of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrantsemployment, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, ;
(viiie) any transaction sale, assignment, transfer, conveyance, lease, pledge, failure to maintain, abandonment, encumbrance or commitmentother disposition of or agreement to sell, assign, transfer, convey, lease, pledge, encumber or otherwise dispose of any assets, including but not limited to, rides that are in active use or dormant, except for (i) sales of merchandise, food, beverages and related goods in the ordinary course of business and (ii) sales of assets or personal property (other than amusement rides) no longer required in the business of the Company;
(f) any merger or consolidation of the Company or any of its Subsidiaries with any other Person or any acquisition by the Company or any of its Subsidiaries of any stock or business of another Person, or series any action taken or any commitment entered into with respect to or in contemplation of related transactions any liquidation, dissolution, recapitalization, reorganization or commitmentsother winding up of the business or operation of the Company or any of its Subsidiaries;
(g) any borrowing, agreement to acquire real estate borrow funds or assumption, endorsement or guarantee of Indebtedness or any termination or material amendment of any evidence of Indebtedness, contract, agreement, deed, mortgage, lease, license or other instrument, commitment or agreement to which the Company or any of its Subsidiaries is bound or by which any of them or their respective properties is bound (other than amendments made in December 2005 under the Credit Agreement, the Second Amended and Restated Subordinated Note Agreement and the Restated and the Senior Secured Subordinated Note Agreement and borrowings made thereunder in accordance with the terms of this Agreement);
(h) any declaration or payment of any dividend on, or any other distribution with respect to, the Capital Stock of the Company or any other payment, loan or contribution made by the Company that was not made in the ordinary course of business consistent with past practices;
(i) any Lien imposed on any of the assets, tangible or intangible, of the Company or any of its Subsidiaries other than Permitted Liens;
(j) any settlement of any material litigation affecting the Company or any of its Subsidiaries;
(k) any capital expenditures or commitments for VOI development additions to property, plant or equipment of the Company or any of its Subsidiaries constituting capital assets in excess an aggregate amount exceeding $200,000, other than pursuant to the Company’s existing capital expenditure budget and attached hereto as Schedule 4.11;
(l) any death of $1,000,000 an employee or customer at an amusement park operated by the Company or incurrence of any extraordinary loss in connection with an accident or other occurrence at any such amusement park (ixwhether or not covered by insurance);
(m) any material labor trouble acceleration or claim of wrongful discharge or other unlawful labor practice or action, delay (x) any improper subjection of VOI inventory by the Company as compared to the FairShare Program Company’s past practice) in the collection of any receivables or the payment of any payables; or
(xin) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Palace Entertainment Holdings, Inc.)
Absence of Certain Changes or Events. Except for liabilities incurred as disclosed in connection with the Company SEC Reports filed prior to the date of this Agreement or as set forth in Section 3.08 of the transactions contemplated herebyCompany Disclosure Schedule, since January 1September 30, 20001996, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, course and in a manner consistent with past practice and there has not been (ia) any damage, destruction or loss with respect to any assets of the occurrence Company or any of an event that could reasonably be expected its subsidiaries that, whether or not covered by insurance, would CORPDAL:59869.4 22768-00022 15 constitute a Company Material Adverse Effect, (b) any change by the Company or its subsidiaries in their significant accounting policies, (c) except for dividends by a subsidiary of the Company to result in any material adverse effect on the Company or another wholly owned subsidiary of the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend dividends or distributions in respect of shares of Company Common Stock or the shares of stock of, or other distribution (whether in cashequity interests in, stock or property) with respect to any subsidiary of the Company's capital stockCompany or any redemption, (iii) any split, combination purchase or reclassification other acquisition of any of the Company's capital stock securities or any issuance or of the authorization securities of any issuance of any other securities in respect of, in lieu of or in substitution for shares subsidiary of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (Ad) any material increase in the benefits under, or the establishment or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, performance awards (including, without limitation, the granting by of stock appreciation rights or restricted stock awards), stock purchase or other employee benefit plan, or any increase in the compensation payable or to become payable to any of the directors or officers of the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee the employees of the Company or its subsidiaries of any increase in compensation, bonus or other benefitsas a group, except for (i) increases in the ordinary course of business, (B) any granting by the Company salaries or any of its subsidiaries wages payable or to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than become payable in the ordinary course of business and consistent with past practicepractice or (ii) the granting of stock options in the ordinary course of business to employees of the Company or its subsidiaries who are not directors or executive officers of the Company, or (viiie) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoingMaterial Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Vtel Corp)
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement or the transactions contemplated herebyDisclosure Schedule, since January 1the date of the Balance Sheets, 2000neither MSWC nor any of the Subsidiaries has (i) suffered any material damage, destruction or casualty loss or (ii) suffered any Material Adverse Effect. Except as set forth in the Company Disclosure Schedule, since the date of the Balance Sheets, (i) the Business of MSWC and its subsidiaries have the Subsidiaries (present or past) has been conducted their respective businesses only in the ordinary course, and usual course consistent with past practice and (ii) there has not been nor has there been an agreement to take any of the following actions:
(i) the occurrence any incurrence or assumption of an event that could reasonably be expected to result in any material adverse effect on the Company, except for an effect due to changes affecting the economy obligation or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, liability;
(ii) any the declaration, payment or setting aside or of amounts for payment of of, any dividend dividends on or other distribution distributions to or for any stockholders (whether in cash, stock shares or property) with respect ), the issuance, delivery, sale, or authorization, proposal or agreement to, or commitment to the issuance, delivery, or sale of any shares of capital stock of any class, or any securities convertible into capital stock, or the grant of any options, warrants, calls, conversion rights, commitments, pledges, Contracts, restrictions or rights of any character obligating MSWC or any of the Company's capital stockSubsidiaries to issue any such shares or other securities, (iii) any the split, combination or reclassification of any shares of the Company's capital stock or any issuance or the authorization of any the issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances the repurchase or acquisition, directly or indirectly, of Company Common Stock upon the exercise any shares of Company Stock Options any capital stock, or Company Warrants, in each case awarded prior an amendment to the date hereof in accordance with their present terms, terms of any capital stock or any other securities of MSWC or any of the Subsidiaries;
(iii) any change to any of the accounting principles or practices used by MSWC or any of the Subsidiaries;
(iv) prior any acquisition or agreement to acquire by merger or consolidation with, purchase of a substantial portion of the date hereof (A) assets of, or through any granting by the Company other manner, any business or any of its subsidiaries to any current Person or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, division thereof; or
(v) except insofar as may have been disclosed in Company SEC Documents any sale, lease, license, transfer, mortgage, pledge, encumbrance or required by a change in GAAP, other disposition of any material change in accounting methods (assets or underlying assumptions), principles the grant or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise assignment of any income tax liability by the Company security interest, indebtedness or its subsidiariesclaim, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past prior practice, (viii) any transaction or commitment, or series of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes or Events. Except for liabilities incurred as set forth in connection with this Agreement SCHEDULE 3.9 hereto or in the transactions contemplated herebyinterim balance sheets of Company as of December 31, 2004, since January 1December 31, 20002004, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been been: (i) the occurrence of an event that could reasonably be expected to result in any material adverse effect Material Adverse Effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock securities or property) with in respect to of, any of the Company's capital stockMembership Interests, or any purchase, redemption or other acquisition by Company of any of Company's Membership Interests or any other securities of Company or any options, warrants, calls or rights to acquire any such Membership Interests or other securities, (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present termscapital, (iv) prior to the date hereof (A) any granting by the Company or any of its subsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus compensation or other fringe benefits, except for normal increases in the ordinary course of business, (B) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or Key Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the Company or its subsidiaries or any settlement or compromise of any income tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than cash compensation in the ordinary course of business consistent with past practice, or any payment by Company of any bonus, except for bonuses made in the ordinary course of business consistent with past practice, or any granting by Company of any increase in severance or termination pay or any entry by Company 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 Company of the nature contemplated hereby, (v) entry by Company into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property (as defined in Section 3.18 hereof) other than licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed or required to be filed by Company with respect to any Governmental Entity, (vi) any material change by Company in its accounting methods, principles or practices, (vii) any change in the auditors of Company, (vii) any issuance of Membership Interests or other securities of Company, or (viii) any transaction or commitment, or series revaluation by Company of related transactions or commitments, to acquire real estate for VOI development in excess of $1,000,000 (ix) any material labor trouble or claim of wrongful discharge or other unlawful labor practice or action, (x) any improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of its assets, including, without limitation, writing down the foregoingvalue of capitalized inventory or writing off notes or accounts receivable or any sale of assets of Company other than in the ordinary course of business.
Appears in 1 contract
